Stand up and be counted – a direct challenge to fellow Criminal Silks

First, a word of thanks. I have had an unprecedented response to my blog on Mr Jinks’ dilemma on the perils of Striking. The response continues and so much the better, for this is no time for pussyfooting. Many of those who strongly disagree with me have responded with generous comment as well as passionate argument. I am genuinely touched, if not converted. The odd brickbat of course – old and naive are par for the course. I would only have been offended if some lunatic had called me rich..

So why am I returning to the fray?

Because quite deliberately I want to hone in on the Leaders at the criminal bar and thus exemplars for the young and ask them to answer one fundamental question.

ON THE PLANNED DAY OF ACTION ( and happily assuming you are in work) WILL YOU LEAVE YOUR CLIENT UNREPRESENTED?

Yes or no, please. Money where your mouth is.

Please note the question, as the best teachers say.

If you are choosing not to accept a brief starting before the day, I would not begin to question your decision. It is the absolute right of all of us, now and in the future, to say I am simply not prepared to work for those fees.

I suspect many have refused to work on new VHCC cases and that is a completely tenable and principled decision. Let no spokesman say otherwise – how dare they! I support the fight for fair fees completely and will continue to offer my own suggestions on how we can fight the fight even more effectively.

But what I cannot countenance is any withdrawal of labour in the course of a trial where the client, including incidentally the CPS, is left unrepresented.

The question is addressed deliberately to silks, because we are meant to lead. Even where our cause is incredibly unpopular, as mine may well be in this blog.

Let me tighten the question. I know that not one of you would be so calculated as to walk off for the day on a point of principle and leave your junior, if you have one, to face the condemnation of your fellow strikers. No, if you strike, it will be all out for the day. But what if the Judge, as in my fictional Jinks case, says that he or she WILL be sitting, regardless?

You see, I happen to think that judicial reaction to a day of protest cannot be predicted with absolute certainty. Leave aside directives from the top, although my friends I strongly fear they will come under pressure to keep sitting.

Just stay with the premise that some will sit and some will not.

Now then, at the dire risk of repetition what the hell are you going to do? Honestly?

You all have the point by now. As an individual, I am begging my profession to grasp the point and think twice.

There are all sorts of pragmatic reasons to oppose striking and there is nothing wrong with pragmatism in this dreadful situation.
But I want to stay with the principle, if only because it concentrates the mind wonderfully.

How can we abandon our clients?

One final personal point. I am lucky in that as it happens I am not conveniently on holiday but working that day in a non criminal context. So I am not having to make the decision which I am urging on others. But no matter – next time the strike is called, with luck I will be. That day I will give my refresher to the hardship fund. But I bloody well won’t let the client down.

Sorry, this matters too much to shut up. It causes me pain and I care too much for my profession not to beg them to think again.
We still can win concessions, but I cannot believe this is the way.

Finally, I ask the Bar Council to spell out their position well in advance of any day of action. I know I will not be alone in that simple request.

Nigel Pascoe QC

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3 thoughts on “Stand up and be counted – a direct challenge to fellow Criminal Silks

  1. I can’t believe for a second that any judge would insist on a trial proceeding in counsel’s absence. It would be manifestly unfair on the defendant, and no sane judge would countenance it.
    I am sorry Nigel, whilst like others, I respect your integrity, the question you pose is tantamount to scaremongering. This situation will simply not arise, so nor does your question

  2. The answer is very very simple.
    I have explained the position to my client. My client consents to my absence on the 6th. He fully understands that if this action is not taken now,all clients will be left unrepresented in the future. Except the wealthy of course.

    The publicly funded bar is dealing/negotiating with professional liars- and unless we see the true nature of the people we are dealing with – they will always do as they please and exploit our principles for their own ends. they pray on the likes of you who are honourable and act with integrity.
    We deal with these characters for a living. When it comes to negotiating fees with them we crumble.

    I admire your principle but for the sake of justice don’t let it be our Achilles heal.

  3. A few observations

    1. This is not just about winning some concessions, it’s about preserving a fair criminal justice system
    2. The MOJ will not be turned by words alone. They rely on our goodwill to not take action.
    3. No client is left high and dry without their express and informed consent.
    4. When negotiations fail there only remains action or submission. It is certainly not an ideal or pleasant prospect, but the consequences of inaction are worse, both to ourselves and our clients.

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