This is an update to my blog – In Time We Must Talk. It follows an excellent Monday message of Angela Rafferty QC Chair of the CBA, writiten with admirable restraint and clarity.
After over 50 years at the Bar, it is utterly heartbreaking to feel the sense of despair of so many of my colleagues. This is the worst crisis that the criminal bar has ever faced. My sole concern now is whether it will deteriorate even further, causing even more damage.
By damage, I mean to those we represent, to our instructing solicitors and to ourselves. A word or two about each one.
Defendants are facing justice totally unreresented. No one to analyse the Sentencing Guidelines, no one to advance personal mitigation and no one to go to the cells after sentence. When they need us most in their lives, we choose, for the perceived greater good, not to be there.
I find this completely tragic and with the deepest respect to all, utterly, utterly wrong. We cannot forget them as necessary casualties of a beleaguered profession fighting for its life. That’is ABSOLUTELY BLOODY WRONG. We should not be letting ANY defendant down and every one of us knows in our hearts that that is so. We have a professional duty to attend our trials. That is why we are finding the consequences of our decision so agonising.
We are leaving very brave and decent and honourable fellow lawyers to face our music and make our defences. I utterly agree with Angela Rafferty what the right approach of the Bar should be. Maximum pro bono support. No unworthy arracks. And gratitude for their support, which is penalising them as well.
At last, we are putting our cases to the social media and a momentum is building. My fear is that our declared policy, which I very reluctantly have accepted in the very short term, will cause even greater hardship if the Government digs in in its heels. I also cannot run away from the professional obligation point, which, in the last resort, trumps all others. At least, that is my view.
SO WHAT SHOULD WE DO?
Have the courage to put a time limit on our plan of action.
Call on every criminal silk in practice to find their own media outlet to make powerful representations for increased funding.
Get retired Judges involved in the debate by public support. They are, but can go further. They are entitled to say what so many sitting judges would like to say but can’t.
Support vigorously all other other parts of the Criminal Justice system which are crumbling. That includes opposing every aspect from closure of canteens to stopping the building of new prisons.
Controversial but essential, promote a rota system to accept responsibility now for the most serious cases. No more reports of an unrepresented defendant getting five years, although wanting to be represented.
Approach the Lord Chancellor again for a meeting. Be prepared to suspend action on the indication of further negotiations.
I am no quisling. I just know this policy is carrying the real risk of even greater damage to the profession and particularly the young, however bravely and unselfishly they support it. Somebody has to say it. Time to hold our fire.
Nigel Pascoe QC
PS. It should be possible to begin a dignified withdrawal from the present policy if there is the clear promise of new negotiations.
PPS I am very impressed and encouraged by the latest statement of the Chair of the CBA. To achieve ANY increase in funding in the eye of ypthe storm will be a triumph and the Chair deserves praise for for the calm, rational and careful way in which the position is described. We owe her a debt. Let there be similar calm and professional discussion amongst criminal practitioners.