Nigel Pascoe QC recently posted a piece on his blog entitled “Strike at your peril”. I have reblogged his original piece or you can follow the link here to be taken to it. I suggest you read it before carrying on.
I have been sent a response by a junior member of the Bar on the Northern Circuit. They asked if I would post this on their behalf as they wished to remain unknown. I put this down to uncharacteristic shyness on their behalf. Having read their response I am more than happy to do so. If it had been an attack on Nigel Pascoe then I would not have considered doing so. However I view this as simply that young member of the Bar setting out the counter view to Nigel’s. I happen to agree with it. In fact I endorse the sentiments expressed here and am happy to put my name to it.
I stress that I have a great deal of respect for Nigel. He has earned such respect ten times over. He will not recall me but I remember only too well being with my pupil master twenty years ago at Bristol Crown Court and Nigel treated us both to afternoon tea and treated me to a wealth of sound advice. His blog often sets out a contrary view to my own yet does so with characteristic gentle persuasion. I wish that I could have any confidence that Nigel’s dignified approach stood any prospect of success. Sadly I know that it does not.
So, please read Nigel’s blog first and then read this counter argument.
Your Honour, I’m not making an application but out of courtesy I’d just like to tell you that I won’t be at Court tomorrow.
Why not, Mr Jinks?
Because I shall be on strike, Your Honour, which sadly would leave the defendant unrepresented. However, you will appreciate that unless some serious action is taken then thousands more Defendants in the future will be unrepresented or will be represented by Tesco. While I’m sure that ‘every little helps’, I take the view that would it ill behoves a member of this profession to sit idly by while the justice system is destroyed around him. 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 and so that will not be able to take place tomorrow.
Quite. 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. There have been meetings and discussions amongst my professional colleagues and there is a consensus 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 to support that stance 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 is right. I’m certain that it isn’t the way any of us were brought up at the bar. However, the bar you were brought up in was treated with respect. The bar you were brought up in wasn’t contemptuously ignored. The bar you were brought up in was even paid properly. The bar that stands before you now is none of those things and unless a line is drawn in the sand the, with respect, there will be no bar for you gaze at through rose-tinted spectacles, Your Honour. Taking this action is not something that is being done lightly. It follows months and months of attempts to negotiate. It follows thousands and thousands of responses that were drafted and submitted to the Government’s ‘consultation’, if that is indeed what it was, including a response from Treasury Counsel which, if I may say so, for the first time in a long time made me proud of being a Barrister. This isn’t something being done lightly.
No, Mr Jinks I don’t suppose it is. 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 the Bar stand shoulder to shoulder on this and will ensure that no individual should suffer any personal loss. It will no doubt make Your Honour laugh were you to make such an order when your experience in court every single day of your judicial career will have demonstrated to you how much time experienced counsel save and how much waste they prevent. Ironically of course, those who waste the most time are rewarded with lucrative contracts when all we at the Bar are asking for is to be paid reasonably for the difficult and specialised job we have worked hard for years to become capable of doing.
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. Is that loud noise that I can hear the breaking of ‘irony meters’ all around the country ? Can Your Honour truly say with a straight face that the Lord Chancellor does not want the progress of the Courts to be interrupted? That is precisely what this action is designed to prevent. It is not hyperbole to say that the Lord Chancellor’s actions are destroying the Courts, the Bar and the Justice system as we know it. Never mind disrupting, the Bar are trying to prevent him destroying the Justice system and our profession along with it.
But sadly Mr Jinks, it may not end there. Courageously you have made your position clear in advance. When you fail to attend tomorrow, I may have no option but to begin proceedings for contempt. Have you thought about that?
Yes, Your Honour, I have. I take the view that the real contempt of court would be to attend tomorrow and sit idly by while my profession, which is in place to fight without fear or favour to uphold justice, is systematically destroyed. That would be contemptible. Do I take it that Your Honour disagrees and thinks that any of these proposals from the Government benefit the Criminal Justice System? Your brother Judges, HHJ Woolman and HHJ Knowles QC, don’t appear to think so.
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.
Your Honour seems to miss the genuine prospect that my career will cease to exist otherwise, but 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. 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?
I’m sure that such cross examination would be a nightmare. But unless something is done, Your Honour will become increasingly familiar with the sight of litigants in person conducting cross examination and a whole lot more besides. Indeed, Your Honour seems to be labouring under the illusion that I am taking this action for my own benefit. Of course, I have an interest in my own future and it would be ridiculous to suggest otherwise but, I am thinking of little else other than the high standards of my profession and of this client and those who will hopefully follow him. This profession exists to represent people without fear or favour. What I am doing tomorrow is designed to try and ensure that it can continue to do so.
No Mr Jinks, but that is precisely what he will have to do and think about tonight. The court will sit tomorrow morning as usual.
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, whose family is more important ? Mine, or the families of the people who won’t get proper representation in the future and will lose their liberty, their homes, their jobs, their reputations, their marriages and who knows what else as a result ? I’m quite sure that I’ll be able to look my wife and family in the eyes and know I’ve done the right thing and I hope my children never have to make such a decision themselves. If they do, I hope that they too will do what is right for others and not just make things easier for themselves.