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.
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, 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.
A view from the North 
That is a perfectly fair and well phrased riposte. But it still leaves the dilemma of the lay client unresolved. I blog because I fear the Bar in honour is making a terrible professional and practical mistake, giving a hostage to fortune. Nothing I fear would ever persuade me to leave a client mid case unrepresented. But thank you for the kind words as well. Nigel Pascoe QC
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Thank you for the afternoon tea all those years ago!
I would have thought ten years ago that I would have held the same view as you do now. Sadly I now find myself compelled to agree with the author of my guest blog.
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Don’t get me wrong- I would love us to be able to do something to prove our worth.I don’t share Nigel Pascoe’s view that it lacks dignity : walking round Parliament Square with a coffin was “lacking dignity”, this is our only weapon for when reason fails HOWEVER, experience tells me that the thought we give to this in advance will be reflected in the degree of success that we have. If a way can be found of ensuring a high “strike”(!) Then let’s do it. BUT we have to consider the following:
-Do prosuting counsel join in on the strike day(s)? How do we deal with snippy letters sent to prosecutors threatening to not instruct those who strike?
-Does the strike also include not turning up to the C of A?
-Do we expect counsel to “sign uo” to a strike in advance so that we can see who the strike breakers are ?
-What is to be the attitude of solicitors to this ? We need to get them on board.
IF the answers to the above aren’t readily to hand then we are NOT ready to strike !!
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Mr Jinks trusts, as we all do, that any Judge faced with this situation, whilst doing all he can in advance to encourage the barrister to attend, will not insist on the trial proceeding in Counsel’s absence. He will adjourn the case until the barrister returns the following day. The Judges respect our principled position, as some recent public comments demonstrate, and won’t want to punish individual barristers who take part in collective action. Whether they will or not remains to be seen. But more importantly, as to the “dilemma of the lay client”, the Judges have a central duty to ensure a fair trial. Faced with a defendant who wishes to be represented in his trial and who finds himself unrepresented through no fault of his own, no Judge will insist that the trial continues. It would be utterly unthinkable, not to mention a cast iron appeal point. The Judge would have no choice but to adjourn and resume the following day. If the Judges know we’re serious it is to be hoped they will simply reluctantly accept Counsel’s indication and send the jury home until the day after the strike…
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Unfortunately Mr Pascoe hasn’t quite gripped the reality for the junior bar. Doubtless he still labours under the misapprehension that a couple of strongly worded letters to The Times should persuade The Lord Chancellor to change his policy. He is utterly wrong, but dare I suggest the cuts to Legal Aid won’t have quite the same impact on those members of the Bar who are closer to retirement than those of us at the beginning of our careers?
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So be it. However you will see from my blogs that I continue to believe that ultimately reason trumps even the most intransigent position and also that there may yet be a role for independent mediation. I want to enlarge the alternative to direct action, however unpopular or unlikely that may be at present. Someone needs to do that .
My regards
Nigel
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Nigel,
I appreciate the sentiment, but when’s it going to happen? Next month? Next year? After the General Election? How long can criminal practitioners hang on at the Bar, with the attendant stress and uncertainty?
I’m not sure what mediation could achieve, other than a lot of people talking. From my perspective, your position on the how the Bar ought to behave respectfully appears analogous to the forming a committee to debate a resolution on whether to get into a lifeboat on the Titanic, and if so which one. I fear it may all be too little far too late.
Jon
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I too respect Nigel’s view, but disagree with it. Unfortunately, we are dealing with a Lord Chancellor who is the personification of the result merchant. He cares nothing for the sort of decency that Nigel displays, but is interested only in whether Nigel (and the rest of us) are willing – for whatever reason – decency, not wishing to abandon a client, whatever – to do the work more cheaply than now. It is precisely because we have, as a profession, been ‘decent’ in the past, relying upon receiving ‘decent’ treatment in return, that we are where we are, with a Lord Chancellor who has no qualms at exploiting that decency (or as he sees it, weakness). The problem is, in a nutshell, that we are, as lawyers, accustomed to receiving decisions made by rational human beings who have no agendum, and make reasoned judgments based upon evidence and argument: I refer, of course, to judges. Grayling is not a judge, but a politician, and it is a serious error to attempt to deal with him as if he were a judge. I learned a harsh lesson whilst still at school. Give a bully your dinner money on a Monday, you will find that he comes back for more every day until you punch him on the nose and tell him you are not giving any more. It’s the history of relations between the Bar and government over the past six years or so (since Carter). If we let Grayling cut our fees now, the next thing will be the CPS cutting their fees to match, and the year after that is an election year, when Gideon will be looking for spending cuts to fund tax cuts. Regrettably, Nigel, we have reached a position where we can’t afford to go on strike, but we can’t afford not to.
Ian West, Fountain Chambers, Middlesbrough.
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I have read both points of view and my position is influenced by two considerations (a) whatever Judges may say publicly I don’t believe that we can assume that they will support us-some are frightened of the wrath of the senior judiciary (b) remembering the time of the last threatened strike (2005), my experience has been that many offer support but then don’t give it when needed. That was what happened in ’05 when the support from other chambers turned out to be their doing the work that we refused to do. My concerns about a strike are that a failed strike is worse than no strike at all. I don’t know if the Court staff are still having intermittant strikes – I know probation were thinking of joing in. If we were to join in any such Court Staff strike, it would lessen any chance of sanctions against us (unfair to penalise us when the court staff don’t get punished ) and would take less of us to have an effect on the system,namely we would help to bring the courts to standstill whereas I doubt if the Bar on its own would affect even a quarter of the Courts. I share Nigels position but for different reasons.
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Nigel Pascoe QC is rightly held in the very highest regard by every member of the Bar. I enjoyed reading his original post and also this response. Whoever the author is he/ she has confronted head on the dilemma that every member of the Bar will face should they be put into this dreadful position. Clearly, Nigel and the unknown author have both identified this as the crucial point of focus. I anticipate that the Secretary of State holds the view that barristers will adopt the position advanced by Nigel.
My strong impression is that the honourable and moderate Mr Jinks, has been pushed into a corner, where he can do one thing and one thing only. He has a gun pointed at his head and his would be assassin will not listen to reason. Mr Jinks is facing the fight of his life. Unless he acts boldly and courageously, the system that has produced advocates of the calibre and skill of Nigel Pascoe QC will be no more. I welcome Mr Jinks’ show of strength.
He is a good man.
He must fear no one. He must do right.
On this occasion doing the right thing means standing up and being counted, Unless he does, Mr Jinks will not escape his assassin’s bullet. If he falls to the ground, the system that he has done his utmost to protect will fall as well.
Thanks to both Nigel and the unknown author. Thanks also to Jaime for allowing both points of view to be aired.
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Nigel – it is always a pleasure to “speak” to you. I have been in this great vocation for many a year, not as many as you, not to the eminence you have justly achieved…. But in all my years, I have trudged through rain, and sleet and slow. I have dragged myself from my sick bed – be it flu, be it noro virus, be it at one time something far more serious. I have struggled in after a bi-lateral knee operation. I have continued with acute ear infections, with family crises, with school events being ignored and sidelined. I have worked until 3 in the morning, more often than not without any remuneration, with little prospect of any benefit to my client, let alone to me, but always to the benefit of the process, to the assistance of the court.
The very idea of not attending, with a client in mid-trial, fills me with horror, dread and revulsion. BUT this has carried on so long now. They have relied upon our honour, our integrity, our professional duty and ethics. They have used that to nail us to the cross, to cut us to the bone. No more, Nigel, no more. It cannot go on. We cannot go on. The justice system just cannot go on like this anymore.
You will be the first to accept that you and those of your contemporaries and those that followed immediately on, have earned a decent living and made a comfortable life from this great profession. I have made a very good living, ever diminishing, because I work very hard, very long hours, and, modesty aside, am relatively good and successful. But those very long hours cannot stretch any more. There are but 24 hours in a day. My children’s school will not be reducing their fees by 17.5% let alone 30%. Tesco will not be dropping the price of a roast chicken by that degree anytime soon. So selfishly, I feel I have no option.
But that pales into nothing, compared to the alternatives for the Criminal Bar in general, and those that are coming, and will come, after you and I. They, unless they are very lucky, have never really made a decent let alone a good living. They have not earned for themselves a comfortable life. They have no safety net. They doubtless have student debts and the like. How will they survive?
With their demise comes the demise of the Criminal Bar. The demise of the fair trial. The effective representation. The proper and safe prosecution. The fair and impartial yet qualified judiciary.
There is too much at stake, Nigel, in my humble opinion. If a Judge of Her Majesty’s Circuit Bench considers it fit and proper to carry on a trial, for example, without the attendance of counsel, they will be abandoning their principles from practice, and from the long traditions of the Bench as well. They will be ignoring the ECHR and HRA. I would be sanguine of any appeal were a judge to proceed where it is counsel who “fails to attend” rather than the defendant. What judge (apart from the few outliers, and we won’t name names here) would continue a trial in those circumstances?
Sorry Nigel. I have every respect for you, and value your opinions, and you measured and considered opinions. But I simply cannot agree with you.
The Profession we both love is at stake. The MoJ have no love for our profession, no respect for it, and do not value its contribution to the Criminal Justice System. Saying that, the MoJ have no love for the CJS, no respect for it and do not value it. They hold the cards, they have the purse strings, they will deal from the bottom of the deck without compunction.
We have one lever to pull, one button to push. That the only button left to us is nuclear is not of our making.
But without the courage to pull the lever, to push the button, the system will be dismantled, the oppressed will be without a champion and justice will dwindle and disappear – a preserve of the wealthy and connected.
I will not be, what I would venture to term, complicit in that.
I am sorry for the length of what was meant to be a short reply but it is from the heart and what I would call my soul.
Wishing you and all our colleagues the best as always
Regards
Tim
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Reblogged this on criminalbarassociation and commented:
Our thanks to Jaime Hamilton for bringing this crucial debate to greater prominence. Much as we all have the utmost respect for Nigel Pascoe’s experience and unquestioned integrity, we are only too well aware of the views of our members from which we will not shrink.
Please read what Nigel has to say, as you can see, he has had the good grace to respond to those who put a contrary view.
We are now very confident from our own soundings, not least the response from those delegated to attend the Lincoln’s Inn Hall meeting, that the profession is solid. We now know that we are united, and the the MoJ’s bluff WILL be called.
Practitioners up and down the country can be assured of a united approach from all. This is NOT 2005. The world has changed. The LegalAid Bar is staring extinction in the face. There will be no point in trying to appease those who would destroy us, as Ian West’s response makes graphically clear.
If not now, when?
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My post of the 29th has inadvertently come out ahead of my earlier (27th) comment. It is interesting to note that no one has replied to the three questions that I asked -dont the CBA read these blogs?
So, let me repeat: I am in favour of threatening to strike, I am in favour of a successful strike but I do not want us to have a failed strike. A suggestion to ensure a successful strike would be that all counsel/advocates appearing at the CCC are to go on strike on a certain date with their strike action being mentioned in the press the day/evening before. “That’s leading by example” !!
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I do not speak on behalf of the CBA. However I would suggest that a day of action would include C of A, although I would expect the leadership of the CBA to give specific guidance.
I would expect those instructed by the CPS to join in. We are protesting about the state of the entire CJS. And where defence fees go, CPS fees will follow.
The suggestion by Mark George QC was that there should be a meeting in each city/town on the day of action. Then you would know you were not at home alone whilst everyone else worked.
It is vital that we are strong and do not undo ourselves by over thinking. The time to act is now. We can always think of something that we may view as better than the suggested action or some reason not to do the proposed action. The important thing is if the CBA come up with a plan we just execute it.
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Am glad that you at least have had some ideas-i don’t see the CBA grasping the nettle on them .
I personally would NOT include the CofA-they CAN proceed without counsel and I don’t want to annoy that level of judiciary. Yes, the prosecution should also go on strike, but did the CBA raise this with the DPP last week(as I asked that NLQC do)? I don’t expect the DPP to endorse publicly our action but a dignified silence woutld suit us nicely (so no threatening letters). Mark Georges idea of a meeting is a good one (especially if we can get local solicitors involved which we have to) -is this what the CBA would advise ?
A strike has to succeed : I would rather worry about it and find my fears unfounded than find that the strike is a damp squib !!
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Yes Kate. The CBA do read these blogs, even on a Sunday, and at all times of the day and night. So do the MoJ, so you will understand why we might be a little reticent about expressing a definitive view here.
We listen to EVERYTHING our members have to tell us. Some share your views, some do not. We then do our best to reach a consensus, the result of which will be apparent very soon.
Please bear with us, and remember some of us work 24/7 on your behalf to try to reach the right decision. Do not please be too dismissive of our efforts just because you personally do not always receive an individual reply. We do after all, have over 5,000 members!
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Rest assured, those who give of their time positively and constructively have been working flat out on planning, AND taking the views of all into account
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I posted the above before your reply came through. I am well aware of what we say being available to be read by all. I don’t expect everyone to agree with me (no one has that luxury) but I would like to see that the planning is going into this which will make it a success.
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