Hold Fire

HOLD FIRE.

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.

LAY CLIENTS

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.

 

SOLICITORS

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.

US

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Advertisements

In time we must talk

HARD FACTS

The Government alone control and pluck the money tree.
That gives them the power to dispense with the pretence of an independently funded legal aid defence system and seek to replace it with a criminal defence service at a time of their choosing.
Unquestionably the system is broken: of course, The Secret Barrister is right.
The Courts, prisons, probation service, CPS and legal aid lawyers all have a strong case for increased funding.
However in the eyes of the public and the Government, the NHS is in greater need than the legal profession.
Therefore to pluck fruit from the money tree, we need a superbly argued case to carry the public as well as the Treasury. A strike alone will not achieve that.

TACTICS

Our case is better presented as part of a series of reforms as above – than as a stand-alone claim.
Refusal to accept new instructions will, within 6 months, have a huge impact on the operation of  the legal system.
After that, without a shaking of the money tree, the criminal bar will be deeply impoverished to the point where a significant minority will be unable to continue in practice. That is an appalling prospect.

Also by that time, a significant number of defendants will have been unrepresented or markedly less well represented than had we been representing them.
** Some emergency provision must be devised now to represent very serious cases on a rota basis. Unrepresented defendants inevititably produce hostile headlines. We know that and we must be seen to be flexible.

That is because one consequence of continuing action is that the public mood is likely to be more polarized than at present.
So, by deliberate repetition, if the position remains unresolved, the Government will attempt to introduce a beefed-up Criminal Defence Service. Further, many independent criminal barristers will feel compelled to join it or starve or leave. Without an attempt to reach out by Goverment and by the profession, we will be in an even more parlous state than we are now.            There MUST be another way.

So what is the ALTERNATIVE?

I do not suggest we stop our actions altogether at this specific moment.

However there will be reason to do so in a period of less than 6 months – when hardship has increased but is still short of financial Armageddon.
WE HAVE TO KEEP TALKING and theLord Chancellor MUST in conscience respond. If that requires an intermediary, I could name a number of ideal candidates and so could many others.
The success of such discussions will depend on all the other ways open to us of ventilating our just case in a democracy. We should enlarge that process without delay. More Leaders and retired Judges should speak out.

Such ways should include the publishing of true case fee underpayments, brought to life by our best advocates, young and old.
It is absolutely vital that we support equally clearly the other underfunded parts of our criminal justice system.
Specifically, we should not slag off the CPS, but urge their fuller funding also in the interests of justice.
Underlying the thrust of our persuasion must be the dire need to provide a continuing career in crime for young advocates.

CONCLUSIONS

1.The fundamental barrier to higher fees is the present management of the economy with its emphasis on limiting public spending. Short of a sudden election, that is unlikely to change radically in the next 4 years.  Only the strongest case will achieve significant success.

2, It follows that we must continue to fight our corner so as to retain public support, using a range of good advocates. 

3, We must provide emergency cover in serious cases. 

4. A key part of our campaign should be the present non-payment for huge amounts of material. 

5. It is time, please, to talk more.

 And that is a two way street.

Nigel Pascoe QC

PS  A vote along party lines is an indication of the scale of the battle ahead. But I do not think that it should make us shut up shop and not talk.

 

 

 

 

 

 

 

 

Limit the damage and talk

I would like to see the Ministry of Justice reach out to our profession to avert the consequences of a damaging strike. Recognise the reality of serious underfunding and give a commitment to further spending in a fixed timescale. If necessary, seek a trusted intermediary to speak to the profession.
Barristers do not want to be in this position and we know how our young in particular suffer. We have to move forward and rebuilt trust and promote professional respect. Above all, resist the temptation to fight a dirty propaganda war.

As a very good chambers have said, more in sorrow than in anger.

Reach out and limit the damage.

 

Nigel Pascoe QC is a specialist criminal advocate who has been briefed in over 120 murder cases. He is a former Leader of the Western Circuit. He also writes plays.

 

 

 

 

 

 

 

Nigel Pascoe QC is a specialist criminal advocate who has been briefed in over 120 murder cases. He is a former Leader of the Western Circuit.

 

 

 

 

A Question of Justice

This is not easy. I support the proposals for the pre-recording of the evidence and thus cross examination of rape complainants. I would extend it to every person, adult or child, alleging sexual assault. And I know at the same time that the proposal carries the potential for injustice and has a significant practical disadvantage. What of issues arising at short notice after cross examination has been recorded? I find that potentially a real stumbling block. But I still support the proposal as an enlightened, even inevitable reform. It needs refinement and constant evaluation. But it is the way forward

That is my honest view. WHY? 

The starting point is the appalling trauma of reliving and retelling in public the humiliation and fear implicit in most sexual attacks. Even with skilled and sympathetic police officers, it is bad enough to describe such incidents to strangers. The process of justice now requires you to repeat it in public and, in the process, magnify the trauma that most true complainants unquestionably have experienced.

 

In a sentence, the public recitation of sexual assault doubles potentially the agony and the harm.

 

Of course I generalise and we can all point to calmer victims for whom the retelling and just conviction may have been cathartic. But the basic truth is that it is, almost inevitably, a terrible ordeal, not withstanding very intuitive and sympathetic defence counsel and superb judge work.

 

It just hurts so much.

 

Don’t worry – i have not forgotten about innocent and falsely accused defendants. I will face their plight head on. But let us first examine soberly what the Lord Chancellor is proposing and not run away from its dangers.

 

In future, evidence and cross examination will be removed from an open court setting to one more conducive to candour and calm. The defence will be put and the lying complainant tested. And I do not mean sanitized through intermediaries, save where, as now, that is is permitted. The case will be put. That much has not changed.

 

The ordeal over, the complainants, the huge majority of whom are speaking the truth, can creep back into their damaged lives and begin the process of gradual recovery. The reality is that some will never recover. BUT we will have lessened their ordeal. That is why this blog is called a Question of Justice.

 

And the innocent defendant?  

 

Falsely accused and unable to see their accuser? They, as now, will be in the hands of trial by their peers. Their case will have been put and if, like me, you blelieve passionately in the power of good cross examination, they will be acquitted when they deserve to be. Juries will not change into agents of the Crown simply because the complainant is not present. Indeed one can foresee how many a good defence speech will capitalize on the change.

 

So this is not about improving the conviction rate. Perhaps it may lead to more guilty pleas once the video is seen by the guilty. I will not presume to guess whether that will happen. It is about compassion and justice for the terrified.

 

One last point. In an ideal world, I would go much further. The complainant would never leave the security of their home. Mobile television vans would be parked outside and thus would Justice proceed. But even I understand that at present is cloud cuckoo land. Yet one day…

 

Nigel Pascoe QC

The Pens of Tyrants

Let me put my views right on the line. The Daily Mail is seeking to subvert the rule of law by putting insidious pressure on independent Judges. A very serious charge, which I propose to justify from their own conduct and reasoning. I would hope that ultimately the Prime Minister and the Lord Chancellor will find the right words to condemn them. Ultimately the Attorney General may need to act. That will take enormous political courage. I am not remotely confident that any of those actions will take place.

Back first to the decision under appeal. To a simple legal mind, the ruling of the LCJ and his colleagues is crystal clear. There are defined and historical limits on the exercise of the prerogative. The course sought by the Government breaches those limits, as a matter of clear interpretation. Thus the Government must proceed by another route. The consequences of that are not the business of the judges. They simply interpret, to the best of their ability, the Law.

It follows that on appeal, that interpretation must be shown to be flawed. For example, too great weight was given to historical precedent. In interpreting the correct legal position, it may be said boldly that the Judges of our Supreme Court need to recognise the people’s voice, expressed sufficiently decisively in the Referendum vote.

Pause. If for the reason given or following more far more sophisticated submissions, the Supreme Court allow the appeal, THAT IS FINE BY ME. I really do not care at all what decision is reached in law. Whatever it is, I
and everybody else should, indeed must respect it. That is the way the system works.

Now let us see how the Daily Mail has set out to subvert the process, whilst paying lip service to judicial integrity and independence.

1. Collate and analyse all European connection of each Supreme Court Judge in order to assert the possibility or worse, near certainty of bias. Then rate them with stars.

1. Collate the views of the relatives, friends and acquaintances of Supreme Court Judges to assert that the Judge concerned will, for example, follow meekly the views of his wife.

3. Argue that they cannot help being influenced, directly or indirectly, by those views or connections.
Now you and I and everyone who understands the system in practise knows that not one of the Judges in question for a single instance would undermine their judicial oaths by any or all of the matters highlighted by the Mail. It is a total calumny. A lie. An insidious smear. A vicious attempt to damage and mislead. Lifetimes spent deciding strictly on the principles and facts of each specific case deliberately and cynically ignored.
But someone other than an outraged lawyer should be saying that.

Or rather, shouting it from the rooftops.

For Daily Mail justice is a very shoddy and unpleasant concept. Let us have no part of it.

The editor should apologise and resign. The Mail needs a new editor and a new sense of responsibility without changing its views. Today it shames our press and demeans our Judges. The pens of tyrants are polluting free speech.

Enough.
Nigel Pascoe QC

This scandal is far from over..updated

Read the editorials, absorb the comment pieces, not least by Dominic Lawson, admire the brilliant and vitriolic blogs, not least by The Secret Barrister. This story will run and run.

But Why? I can only cite a very good friend of mine and a far better lawyer than I could ever hope to be. There is every chance that this judgment will be upheld and for the reasons given. Which leaves two questions.

1. How can we prevent further damage to the democratic process, whilst doing no damage whatsoever to freedom of speech?

2. How do we persuade those who need to speak out to do their duty?

The two questions are interrelated. But the first is primarily to do with education, to explain the judicial function with absolute clarity.

A good starting point is the Judgment itself. I will use the excellent Summary which accompanies it.

“The issue before the court is whether, as a matter of UK constitution law, the government is entitled to give notice of a decision to leave the European Union under Article 50 by exercising the Court’s prerogative powers and without reference to Parliament

This is a pure question of law. The court is not concerned with and does not express any views about the merits of leaving the European Union. That is a political issue.

It is accepted from all sides that this legal question is properly before the court and is justiciable.”

Could anything be clearer?

Now I can see at once how the assertion that it is a pure question of law sits very uneasily with those who assert that it’s consequences are highly political. It will or may delay the implementation of Article 50.

It allows Brexiteers to fear absolutely genuinely that it may frustrate the will of the people. I certainly do not discount that fear. I voted to remain but absolutely accept the result. We must now leave, full stop. Yet many remain deeply suspicious of underhand steps to subvert the will of the people.

But the answer lies in the hands of the Government. Shorn of the right to exercise a veto by prerogative, they must speed up the Parliamentary process as they deem fit, whilst allowing Parliament its voice.

The second questions allows a more robust answer.

I refused to attack the appointment of the LC and I definitely wanted her to have at least the chance to follow the best of Michael Gove. Now I am very disappointed and that extends to the limited response of the Prime Minister. Far too little and too late. Just imagine how Lord Hailsham would have lambasted the evil comments of the Daily Mail! How can anyone begin to justify the insult to the Master of the Rolls? The phrase Enemies of the people will redound to that paper’s discredit as long as we can foresee. It was contemptible, base and shocking. Other papers must bear their own lesser shame.

It was the absolute duty of the LC to have condemned those attacks firmly and decisively and her late statement failed to do so. In fairness, her letter to the Times put the importance of judicial independence more strongly.  But it failed still to condemn the specific personal abuse.  Until it is, I do not think the issue can be put aside.

At which point, the advocate in me aches to find some mitigation. Surely she must have feared the reaction of her boss? Perhaps informal messages had been exchanged. They may have made it more difficult for her to assert her independence. And how can you castigate those who otherwise are supporting you to the hilt?

Well I have done mu best, but they are, at best, weasel words. The LC and the PM have let down the Judges under personal attack and they must accept the torrent of criticism which has followed. There is in the wings, as he has been for years, a perfectly obvious and supremely well qualified alternative LC, treated shabbily by the Government. One day I fervently hope that his time will come. Then we will see what prestige a great lawyer can bring back to the office.

So how do we prevent attacks on the Supreme Court before they have even received their papers, let alone decided. How do we protect them if they uphold the present judgment?

The answer is is by one bloody great big concerted effort, an application of reasoned and informed explanations of function and a plea for balanced journalism. That includes an explanation of the circumstances in which any Judge of principle does not sit because of a declared interest touching directly on the issue. That was unnecessary in the Court below and I have no doubt will be in the minds of the Supreme Court also.

What we cannot do is to let this gross distortion of our processes be forgotten. A line was crossed. We fail to row back from it at our peril.  There is no defence of free speech available to professional malice makers.

 
Nigel Pascoe QC