Strike at your peril

Your Honour, I have an unusual application to make, namely that this Court should not sit tomorrow at all.

Why not, Mr Jinks?

Because I shall be on strike, Your Honour, which sadly would leave the defendant unrepresented. And we have reached the stage in the trial where tomorrow I am due to cross examine the prosecution accountant. In my submission, the defendant is entitled to have me here for that purpose.

Quite.

Your Honour says ‘Quite’ May I infer that Your Honour is indeed prepared to grant my application?

First principles first, Mr Jinks. Are you seriously telling me that you are choosing quite deliberately to refuse to be present in my court tomorrow morning?

Indeed that is my position, Your Honour. I intend no disrespect by that.

So that if I take the view that the trial must continue, your client will indeed be completely unrepresented?

Yes Your Honour, sadly that will be his position.

Well let me just stay with your position, Mr Jinks. A personal decision, I take it?

Well, yes and no, Your Honour. My elders and betters in my professional associations take the view that tomorrow all criminal barristers should withdraw their labour, as it were. The legal aid cuts are so serious that that stance must be taken. However the personal decision is left to me.

And how about the Bar Council?

Your Honour, as I understand it, they do not take quite the same position. Whilst opposing the cuts very strongly, they have indicated that it is never right to leave the client unrepresented in the course of proceedings.

I am relieved to hear it, Mr Jinks. Abandoning clients in their hour of need is not the way I was brought up at the bar. Mr Justice Melford Stevenson would have called it a dereliction of duty. And he wouldn’t have been alone.

Your Honour, I cannot say that this application is giving me any pleasure.

No, Mr Jinks I don’t suppose it is. Because in refusing your application, which of course I’m going to do, I need to ask you if you have thought through the professional consequences of your non appearance tomorrow morning?

You mean a wasted costs order, Your Honour?

That for a start.

Well I understand that my betters have budgeted for that in the short term. So happily I will be in a position to dip into the whip round and pay any order that Your Honour deems appropriate.

Unfortunately then that is the least of your worries, Mr Jinks. You realise that I shall have to report you to the Bar Council and or the Bar Standards Board and probably your own Head of Chambers?

If Your Honour thinks fit.

I would have no choice, Mr Jinks. We have the clearest guidance from the Lord Chancellor downwards not to allow the progress of the courts to be interrupted. And if you choose deliberately to do so, the professional consequences are inevitable.

Indeed Your Honour.

But sadly Mr Jinks, it may not end there. Courageously you have made your position clear in advance. When I refuse this application and you fail to attend tomorrow, I may have no option but to begin proceedings for contempt. Have you thought about that?

No, Your Honour, I have not.

Then may I suggest you give it your very careful consideration.. Very sadly that would put your entire career on the line. A criminal conviction is difficult for any regulator to ignore. Whatever the mitigation. Sadly you would face suspension at the least and possible disbarment.

I hope Your Honour is not threatening me.

That is impertinent, Mr Jinks but understandable and I will ignore it. I do recognise that your position is not an easy one. But you need to think this through very carefully.

What would Your Honour advise me to do?

Think of your client, Mr Jinks and the high standards of our profession. You are a perfectly good and competent barrister who is representing the defendant entirely properly up to this minute. I simply cannot believe you want to desert him tomorrow in his hour of need. I take it we are agreed that tomorrow’s cross-examination would be a living nightmare for your client to undertake on his own?

He couldn’t do it, Your Honour.

No Mr Jinks, but that is precisely what he will have to do and think about tonight. Your application is refused. The court will sit tomorrow morning as usual.

ALL RISE

Mr Jinks, would you forgive me one more friendly piece of advice. Have a word with your wife tonight. It may be that she has a point of view. I happen to think that families come first

Your Honour.

THE DIFFERENCE

Refusing to work for inadequate rates is entirely defensible.

Withdrawing labour in the course of a trial is professionally indefensible.

That is denying the access of others to justice.

A surgeon would not do that and nor should we.

In all the heat of legitimate fury, please please let none of us forget that fundamental principle.

In short, we must fight on with all the spirit and skill that we possess, but only within the law and
the standards which govern our existence.

Nigel Pascoe QC

A Circuit Voice

Submission by Nigel Pascoe QC, former Leader of the Western Circuit.

1. I have been in full time practice at the bar for 47 years and a silk for 25 years.

2. The proposed cuts in legal aid rates have to be seen in the context of an austere financial commitment to reduce the deficit. Sacrifices must be made by every section of the community. That is the realistic starting point.

3. The percentage cut in fees across the board is unprecedented in all forms of publicly paid work.

4. By way of illustration, my own approximate estimate is that the average level of income for Queen’s Counsel in future doing legal aid crime is unlikely to exceed half the average earned by an NHS consultant doing only National Health work.

5. Similarly junior counsel will be lucky to earn half the amount of general practitioners also doing only NHS work. Each figure takes account of average chambers expenses.

6. There is room for some debate on that generalisation in both directions, but it can stand as a useful comparator for these purposes.

7. Neither consequence is fair.

8. It follows that there will be an immediate diminution in the number of criminal practitioners. Insofar as that will be said then to reflect an oversupply of criminal barristers, it will also be represented as a market reaction which is not the business of government. That ignores the loss of considerable expertise throughout the profession.

9. The further problem is the message it sends to young would be criminal barristers. Put simply, they will not do crime in any significant numbers.

10. This in the medium term will be strongly against the public interest. Unless there is a reasonable supply of young barristers learning their craft, standards must drop and cases conducted at a lower level of competancy.

11. Ultimately an inadequate work force means a loss of quality, in the predictable future. The worst consequence will be that the guilty escape and some innocent people will be convicted. Further poor advocacy inevitably will produce more appeals.

12. The revised scheme does not address necessary work done out of court. Specifically I refer to necessary advices and evening preparatory work. Further it does not address travel costs which may even mean that an advocate may lose money by accepting a brief. That is indefensible.

12a In my view, there has been insufficient consideration given to alternative proposals made by the Bar Council to save money.

CONCLUSION

Both sides should submit to independent arbitration by a panel which includes a very senior retired Judge.

Nigel Pascoe QC