HHJ Switzerland

The next day of action looms large. Barristers and solicitors across the nation will refuse to attend court in an attempt to cause the Government to think again about their catastrophic changes to Legal Aid. I pause to remind you that this is not just about the swingeing cuts to lawyers’ fees although they will damage the provision of justice in this country for many reasons. It is about the overall damage that is being done; the restrictions on access to the courts, restrictions on the availability of Legal Aid and the damage to the ability of the individual to withstand the power of the state.

If you think about it for a moment it must be something pretty massive to cause Barristers not to attend court. We are a conservative profession. We wear dark sober suits, we work within courts that sometimes dress in Elizabethan garb and for many we are the very definition of the Establishment. So it is indicative of the strength of feeling, the opposition to these changes, that lawyers will walk out. Cases, even part heard trials, will be in court with no advocates in attendance.

What is the judicial response to all this? Well the way it has been portrayed to me from more than one source is that the Judiciary must remain neutral in all of this. Their constitutional position is to not take sides between the Government and the legal profession. There is a part of me that can understand that, part of me that is left puzzled. If this was just a pay dispute then that would require judicial neutrality. But this is not just about the lawyers asking for a pay rise. This is cuts to the provision of legal services below the irreducible minimum that is required to provide quality, experienced advocates in the most serious of cases. That is exactly the sort of issue that the Judiciary should have a view about. Are we right or are we wrong? Is there a noticeable drain of talent and experience in the courtrooms over which they preside? If you were to ask a fair minded member of the public if they wanted to know the views of the Judiciary I would expect them to be very enthusiastic to hear their response.

What about judicial neutrality to the day of action? I can understand that the Judiciary may not be able to openly condone and support the choice many of us feel forced to make. However neutrality over this course of action is not the same as simply ignoring it. The fact of the matter is the courts know which cases will be effected or could very easily find out. It seems odd that the administration choose not to react to it. If a pipe burst and floods the building, cancelling the following day’s sitting does not pass judgment on the pipework. It is just a consequence of events. When the court staff go on strike the Judges do not come in early, fill the water jugs, turn on the lights and we all carry on regardless in the absence of ushers and court clerks.

On 7th March we choose to exercise our right to protest. The court know this. Why drag jurors, witnesses and defendants to court when nothing will happen? I would suggest it is extreme folly for any Judge to insist on a case carrying on with parties unrepresented through no fault of their own. That is not neutrality. That is ignoring the reality of the situation.

It would appear that Leeds has come up with a way forward which can be found here. This way has not ignored it. However the prospect that a Judge will ask an unrepresented defendant whether they are guilty or not guilty before even the service of papers is an exercise of “carrying on regardless” which is breathtaking. With the greatest of respect, the modern Judiciary should not be so far detached from the realities of life so as to visit that injustice on a defendant. I am also afraid that the assistance and advocate gives in the passing of sentence is not simply the question of whether or not a defendant goes to custody.

So the Judiciary can remain neutral if they must. But that position should not be at the cost of common sense. Remove cases from the list. Close courts for the day. If it is really necessary to treat the whole episode in the way that a Victorian parent may treat a child then adjourn the cases on the day. However the Judiciary are under a duty to ensure that justice is done. Justice in the cases before them that day, justice in the cases that come next week, next month, next year. Justice may be blind but it is not without a sense of right.

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