An Open Letter to Mark George

Dear Mark

Let me start by saying that I admire you as a person and an advocate. Your career shines out with a burning sense of justice and the desire to right wrongs. You have 10 years more experience at the Bar than I do, and your work covers a greater range than mine. You have been steeped in politics in a way I have not. I only became a member of the CBA’s executive committee this year, having been involved as a commentator and occasional walk-on performer over the last few years during the profession’s campaigns against the legal aid cuts and restrictions on access to justice. So you have many advantages over me.

The main reason I wanted to be on the Exec Committee, and now to become vice-chair, is that I can contribute positively to the evolving changes in the way that the state administers criminal justice. I don’t want to criticise from the sidelines, but to be in the room. Like you, I want the best advice and representation by litigators and advocates to be available to as many people as possible. That needs to be paid for at sensible rates that make the work attractive to the best and brightest.  I want that because I believe the denial of access to justice is a gateway to anarchy and disorder, and the civilised rule of law means everyone should feel that the law can do something for them. If people think they cannot get a fair crack of the whip under the law, why should they obey the law?

Like you, I believe that the MOJ has made a series of poor policy decisions, behind which may well lie a thoroughly nasty ideology of devil take the hindmost.

However (sorry Mr Gove), the prescriptions in your election statement raise more questions than answers. I fear they are either unachievable, or will achieve the opposite of what we both want. Here are some of the questions:

  • No meetings with MOJ apart from LCCSA & CLSA: why? What assurance is there that once in the room everyone will agree? You assume all differences will be ironed out in advance, but that’s a big assumption. Communication with our solicitor colleagues should of course be open and frank, but our interests may not always converge. Your plan puts a lock on solicitors and barristers: for ever? And you leave out the BFG entirely. Are you content for them to meet MOJ on their own? (Joint action plan with LCCSA and CLSA: let’s see how the members vote in the ballot, and again, what about BFG?)
  • ‘Maximum transparency & full communication with the [CBA] membership’. What’s lacking? We have a weekly bulletin from the Chair, and regular updates. Anyone can ask the leadership for more. Social media is full of Exec Committee members giving their views and information. What more do you propose?
  • An immediate 5% rise in advocates’ fees and inflation-linked annual increases. How are you going to negotiate this? What about litigator fees, which you don’t mention? Where will the money come from? Why should lawyers get such favourable treatment over and above others who rely on public funds, like nurses or police officers? And having made this demand part of your platform, what will you say to the membership when it’s turned down flat?
  • Withdrawal of the 8.75% cut and the dual contract. I fear that MOJ are quite happy to sit the action out, and as and when things become really chaotic in police stations and courts, they will turn on the profession and cease to treat us as reasonable negotiating partners.

It would be nice to know how you answer these questions. It’s not matter of being ‘detached from the shop floor’: the nearest thing our business has to a shop floor is the police station, and we barristers are inevitably detached from that, but we know our solicitors and the wretched fees they get for their work there. Otherwise, unless we are particularly snooty, we all do the same job. No silk who spends time in chambers or the Crown Court can be unaware of the strength of feeling among juniors – and silks – about what is going on. The out-of-touch silk is a bit of a straw man.

I think that militancy at this time, and the hyped-up language of militancy, are out of place. You offer the membership a gamble: put everything on the red, now. What if you fail? I think a more measured strategy is called for.

Yours ever,




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Don’t You Know There Isn’t a War On?

Very few if any solicitors or barristers think the MOJ’s cuts in legal aid for litigator fees and the imposition of dual contracts are a good idea. Some solicitors’ firms are taking the risk of bidding for contracts in the hope that they will make a profit or just to stay in the game. The MOJ’s policy was a brutal and dangerously under-tested way of accelerating a process of market consolidation that was already underway, as firms merged or were bought up, in order to reduce costs and benefit from economies of scale. That trend was the consequence of previous fee reductions and a falling crime rate. On the badness of the MOJ’s policy, the Bar and the solicitors have little to argue about. Good advocacy relies on good litigation. If the low fees and a dud contract make good litigation impossible, advocates will be hard pressed to do the best for their clients and justice will suffer.

We are arguing between ourselves about the best response to the problem, not the nature of the problem. The CBA’s decision to hold a ballot to decide whether to support the solicitors’ action has caused dismay and rancour. The tone and language is out of all proportion to the disagreement: there’s talk of betrayals, war, appeasement, ‘better to die on your feet than live on your knees’: and that’s at the more reasonable end  of comments on social media. Militancy is called for. Mark George QC, my opponent in the CBA election (an outstanding barrister, it should be said), suggests that the leadership of the CBA (and I) are ‘fans of Michael Gove’, who should not be in charge. Among other things he calls for an immediate increase of all legal aid fees by 5%, and an annual increase in line with inflation. Mark hasn’t indicated how much this would cost, or where the money should come from. You have to ask how the nurses and teachers would feel about lawyers using their militancy to achieve pay rises that they could only dream of.

It seems to me that the use of bellicose language has intoxicated people and diverted them from the realities of what’s going on. We are not at war with anyone. Mr Gove is not Hitler. This is a contractual dispute between a group of professionals and the government. If, as some one said at a meeting of lawyers at Garden Court Chambers in June, this dispute is part of a campaign against the wider policy of economic austerity, they are deluding themselves.

Michael Gove has inherited several poorly thought-out policies from the hapless and sinister Chris Grayling, who barely concealed his dislike of the rule of law on the occasions when he found himself being ruled by law. We are told to judge Gove by his deeds, not his (very) warm words about law and advocacy. Quite right. On the credit side, he has scrapped Grayling’s plan for supersized jails for children: at least 2 cheers for that. The top civil servants responsible for the muddles about legal aid, Brennan and Gibby, have moved on: maybe one more cheer. On the debit, he has pushed on with the cut and the dual contract.

Now maybe the present action will rock him enough to cancel or suspend them: we’ll see. What then? Pay increases all round, free beer and sunshine every day? Dream on. At some point,  whatever the outcome of the action, all the interested parties will have to talk to the government. Mark will if he is elected.   It will be difficult and tedious work and it will call for determination and maturity. Those doing it will need common sense and freedom from dogma. They will also need to shake off any sense of entitlement to old ways of doing things. It’s possible that more discussion of legal aid will just be off the government’s agenda, whatever the professions say or do. The dreaded OCOF waits in the wings.

And what if the present action achieves nothing except blockage in police stations and courts? No newly appointed minister with ambitions like Gove’s will want to be seen to give in to the demands of an interest group under pressure of such action: the political cost would be too high. I can only guess, but my guess is he will sit it out, and eventually turn on the profession. It is noticeable that the MOJ’s large and normally aggressive press operation has been quiet for the last two weeks. They seem to be playing a long game.

I supported the CBA holding a second vote on action: to have endorsed or repudiated it without that vote, after the general election and the partial change of direction by the solicitors, would have been risky. Remember what not holding a second vote did for the reputation of Arthur Scargill, and the livelihoods of thousands of people, when he might have won it and carried all before him. If the CBA votes to endorse the action, so be it. The leadership (as far as I know: I’m not part of it unless and until the members elect me as vice-chair) will respond to either outcome with equanimity, and will formulate appropriate policies.

I don’t support the action, for the reasons in my CBA election statement, but I respect and  sympathise with those who are taking part it, who include many friends and colleagues.

The rancour between and within the two branches of the profession must stop. People should start calling things by their right names, and stop (for example) dishonouring the dead of the First World War by likening the present business to the slaughter in the trenches. It’s demeaning and absurd.

We have interests in common, but our interests are not identical. Let’s recognise that, show each other more respect, and show the world that we deserve its respect. The Criminal Bar needs to vote and be decisive. You have till 4 pm on 14 July.



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This is a manifesto for engagement and creative thinking, not for the status quo.

For the first time in decades, government and the senior judiciary are aligned about the need for comprehensive reform of criminal justice: we can improve and develop their plans. To do so, we must retain our credibility, or they won’t listen. Militancy need not be the CBA’s default setting: it’s a currency that devalues fast. I supported the direct actions in 2013-4: all else had failed, and they were brilliantly planned and executed, with a clear strategic vision. Now, circumstances have changed, and as good advocates, we should adapt our strategy to them. An advocate who loses the ear of the Court is no use to anyone.

If I’ve learnt anything during nearly 30 years at the Bar, it’s that calmness, determination, astute tactics, and logic work better than belligerence and noise. There are times to be adversarial and to make no compromises: and there are times to settle differences. We have the opportunity to hold Michael Gove to his word about ending the ‘two-tier’ justice system. If we continue to engage purposefully and imaginatively, in an organised fashion, we can help to shape a better future for criminal justice for everyone. That’s what I’ll do if you elect me as vice-chair.

In my heart I understand the anger and frustration that have led to the present call for action, and I share the membership’s fears for the future. If things carry on as they are, the whole profession will wither away from bottom to top, and with it the great tradition of excellent legal representation for all. But in my head I have serious doubts whether this action will strengthen the profession’s hand or advance the cause of access to justice: I think it is premature and full of danger. If you want militancy, slogans, and what Tony Cross QC calls ‘perpetual antagonism’, please don’t vote for me.

I’m not interested in advancing my career, only in doing what I think best for the profession and the people we serve. I have no interest in appeasing the MOJ, but in persuading them that the criminal justice system needs high quality advocates working with equally competent litigators – because together they make it work properly, which is a good thing in itself; and when it works properly, it saves money. To make it work properly, it must be funded properly, and proper funding includes sensible rates of legal aid to make the work attractive to the best and brightest. You know all this. They appear to be beginning to recognise it – belatedly, but nonetheless. At least Gove is asking the right questions, which is more than any of his predecessors has done. The CBA can give him the right answers, and as you would with a difficult tribunal, show him the way to the right result. If engagement fails, then other options remain. But why assume it will fail? We are advocates, after all, and no case is too hard.

We should support solicitor colleagues when we can, be honest and respectful when we cannot, and expect the same from them in return. Negativity, the pursuit of narrow sectional agendas, and fighting yesterday’s battles will get us nowhere. Nothing is off the table: we must reach a sensible settlement on legal aid, and that may call for further action. The 8.75% cut to the litigator fee is bad enough, but the greater danger lies in the two-tier contract, which has been forecast to put the whole system at risk. But a revolt now, based on a howl of pain, with no long-term objective and no exit strategy, while discussions are pending, will leave the MOJ cold and us out in the cold.

I support the present leadership, which has made difficult but correct decisions and is not into crowd-pleasing. I will help continue their work, with the best interests of the public and the profession at the forefront.

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Defending Defending

Michael Magarian QC is reported to have commented to a jury that complainants in a sex-abuse trial had falsely cast themselves as victims to avoid being known as ‘slags’. Many people on social media and elsewhere find his words offensive and have called for his head. Some of them have used equally salty language, which they must think is OK for public discourse.

It’s worth remembering that advocates operate under explicit professional conduct rules, and can be disciplined or struck off if they break them. Rule C7 of the Bar Code of Conduct states

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations…you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person.

The rules for solicitor advocates are no different.

The word ‘merely’ is important. In any type of case, criminal or civil, there will be clashes with the other side. One side may maintain that the other is lying: the point of the trial is to find out. Being called a liar is never pleasant – whether you are one or not. It may be insulting, humiliating or annoying. Calling the other side’s witnesses liars merely to wind them up would obviously be wrong: but if it’s your client’s case, you may have to. The allegation may be true. Your client may have been wronged. The advocate has to act for his client without fearing that he will be attacked – provided he keeps within the rules. We must be loyal to our clients’ instructions but we are not a megaphone through which they can say what they like.

As well as the written rules, advocacy has unwritten but equally powerful unwritten principles of ethical conduct. Tactics that may be within the rules still draw justified criticism, such too much aggression, verbosity, and pomposity. The majority of people, who thankfully never need a lawyer, may not realise that the rogues are very few in number, and are as unrepresentative of the profession as bad doctors or corrupt police officers. The press like nothing better than a lawyer to characterise as a rotter, especially criminal defence lawyers who represent society’s bogeymen.

My preference, when instructed that an opposing witness has not told the truth, is whenever possible to show, not tell: by being asked the right questions, the witness will demonstrate that their account is unreliable out of their own mouth. That makes it unnecessary to confront them with ‘you’re lying’, because they have already shown they are. If they aren’t lying, then no amount of questioning will show they are, and calling them liars probably won’t do the job either.

Judges now have extensive powers to control cross-examination of young and vulnerable witnesses: they can insist on short and simple questions: R v Wills [2011] EWCA Crim 1938; prevent the use of leading questions: R v Edwards [2011] EWCA Crim 3028; stop the advocate putting their case (eg ‘your account is a pack of lies’): R v Wills again; put time limits on cross-examination; and vet the topics of the questioning in advance. (For more detail, see the Bench Book issued to Judges by the Judicial College, and The Advocate’s Gateway.)

These restrictions are intended to facilitate vulnerable witnesses giving evidence, and to stop unfair advantage being taken of their vulnerability. Whether they erode important defence rights and stop the jury seeing through a false account is a moot point. The new system certainly favours the ‘show don’t tell’ approach to cross-examination.

Sadly and self-evidently, not every witness who comes to Court tells the truth. Some people give mistaken accounts, others make things up. Not every one who is charged with a crime is guilty. It follows from those simple propositions that in a fairly run trial the accounts of the protagonists must be scrutinised and evaluated, according to legal principles. Ask yourself this: if you had been falsely accused of a serious crime, would you want your advocate to pull his punches?

For robust and truly courageous advocacy, look no further than Ben Emmerson QC who told the Litvinenko inquiry, and the watching world, that the Russian government was a “close knit group of criminals who surrounded and still surround Vladimir Putin and keep his corrupt regime in power” and they arranged for Andrey Litvinenko to be murdered.











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Not the Global Law Summit

The Global Law Summit (GLS) is a trade fair, heavily promoted by the Ministry of Justice, which aims to display the wares of British lawyers to the rest of the world – what Mr Grayling likes to call ‘our global leadership in legal services’. London is the venue of choice for international litigants who like their lawyers and judges honest, or if not honest, at least well regulated.

It’s pointless complaining that some of the clients may have been neglecting their legal or ethical hygiene – a commercial lawyer who only advised saints would need to take up mini-cabbing to pay the rent. Lawyers have to walk down mean streets without themselves being mean. It can be done.

The trouble with the GLS is that the Ministry of Justice, under the cack-handed Chris Grayling, insisted on tying it to the 800th anniversary of the first edition of Magna Carta. That made his corporate jamboree look like a gross piece of hypocrisy. Magna Carta is in reality a dead letter in the law, but the myth persists that it delivered the English people from overbearing government. The words of clause 40 give the myth its potency: ‘to none will we sell, deny or delay Right or Justice’.

The GLS is explicitly about selling justice to the world, as a commodity. The MoJ has already done much to sell right and justice in the UK, by outsourcing swathes of the criminal justice system to the likes of G4S and Serco – bywords for incompetence and bad practice. We used to tell ourselves that criminal justice was like an elderly Rolls Royce – a bit rusty, a bit expensive to run, but a guarantee of quality and worth the effort. Now the Roller is on blocks, and Del Boy and his van are waiting to take over, if they get the chance.

The MOJ has denied access to justice (and hence, justice) to many, by taking key areas of law ‘out of scope’ of legal aid altogether, and cutting it to the bone where it remains. Kenneth Clarke, the Macavity of the LASPO cuts, said he had to do something about legal aid, because it had grown so much and ‘made the poor extremely litigious’: that casual smear stood in for the non-existent evidence for the MOJ’s ruthless policy. It has introduced fees that make employment tribunals unaffordable to most claimants, and proposes more increases across the board for Courts and Tribunals. At the same time the government has made it harder to get legal redress for administrative wrongs, by restricting the availability of judicial review – a remedy that Mr Grayling believes to be a preserve of left wing pressure groups, and therefore fit for strangulation. If he has his way, he will scrap the human rights protections given under the Human Rights Act.

His government has delayed justice by running down the whole system, so that the Courts are overstretched, underfunded and clogged by people representing themselves because they can’t get legal aid and can’t afford a lawyer. Now even the Public Accounts Committee, whose MPs nodded along when the cuts were being made, thinks they have been a disaster:

The Ministry of Justice (the Ministry) is on track to make a significant and rapid reduction to the amount that it spends on civil legal aid. However, it introduced major changes on the basis of no evidence in many areas, and without making good use of the evidence that it did have in other areas. It has been slow to fill the considerable gaps in its understanding, and has not properly assessed the full impact of the reforms. Almost two years after the reforms, the Ministry is still playing catch up: it does not know if those still eligible are able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of advice being given. Perhaps most worryingly of all, it does not understand, and has shown little interest in, the knock-on costs of its reforms across the public sector. It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. The Department therefore does not know whether the savings in the civil legal aid budget represent value for money.

400 years after Magna Carta, when Hamlet was listing the things that made him wish not to be, they included ‘the law’s delay, the insolence of office’. Anyone dealing with the MoJ will sympathise.

The destruction that has been wreaked on British Justice makes a mockery of the use of Magna Carta to adorn the GLS, and brings it into disrepute. Dr Johnson said that there few ways in which a man can be more innocently employed than in getting money – in which case the GLS delegates are thoroughly innocent. They may well also be innocent of the knowledge of what Mr Grayling and his friends are doing. In his feisty speech to the GLS today, Lord Thomas, the Lord Chief Justice, may have helped to educate them when he said ‘our duty is clear: obstructions to justice are a denial of justice, as Magna Carta teaches’. Tony Cross QC, the chair of the Criminal Bar Association, will have used all his powers of advocacy to do the same.

Asking for a decent accessible system of justice for everyone is a modest, even a conservative, demand. Having to make that demand proves how extreme, subversive and insolent the people in charge have become. This was the demand made by the participants at Not the Global Law Summit, in the freezing cold outside the Houses of Parliament today. If that demand can be met, then the next GLS will be something to take pride in, and not a grotesque embarrassment.


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They Would not Listen, They Did not Know How

Here we go again. Another legal aid consultation by the Ministry of Justice, in response to the quashing by Burnett J of the flawed decisions based on the last one: not that you’d know from the announcement that the MOJ has suffered the humiliation of having its decision described as so unfair as to be unlawful. It says nothing about the judicial review. There is no trace of contrition, regret, much less of apology for mucking the profession about, wasting time and energy, and for creating a shambles.

The MOJ press office employs no fewer than 28 people, according to its website. How many of them did it take to decide to whitewash the debacle of the Burnett judgment and pretend that it merely ‘raises some technical issues’? But then, they are only their master’s voice.

We know from evidence which Burnett J heard, that the Ministry would have paid no attention even if the reports that are now the subject of consultation had been made available when they should have been. To use the language of the Courts, the MOJ has a ‘propensity’ for not listening to reasoned responses. It was strike action by the Criminal Bar, and the threat of more strikes, that got Grayling’s attention and persuaded him to abandon one small aspect of the destruction they are determined to wreak on the legal system.

With the MOJ, the clue is not in the name. If justice involves listening, weighing things up with an open mind, and even changing your mind, you won’t see it in their dealings with the profession. They might want to think about what Megarry J said in John v Rees [1970] 1 Ch 345:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Instead, the Mandarins may have been studying Bleak House. Old Tom Jarndyce was talking about chancery litigation, but today it would be death by consultations:

‘For,’ says he, ‘it’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains’.





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It Doesn’t Matter What You Say, We’ve Made Our Minds Up

Mr Justice Burnett has quashed Chris Grayling’s decision to reduce from 1600 to 525 the solicitors’ firms who will get legal aid contracts to act as duty solicitors. This was the centrepiece of the MOJ’s restructuring of the supply of legal aid, would have driven hundreds of dedicated and experienced lawyers, on whose work the criminal legal system depends, out of business. The Judge has ruled that the decision to adopt this policy was illegal, because the MOJ’s consultation procedure was flawed by unfairness.

This is because Grayling hid from consultees two key pieces of research that the MOJ had commissioned: ‘expert’ reports about the impact of restructuring the market for criminal legal services.  The MOJ based its plans on the reports. But the research (when eventually disclosed) turned out to be contentious and based on questionable (or just plain wrong) assumptions. Burnett J held that the failure to let the consultees see and comment on this research ‘… was so unfair as to result in illegality’ [§50], and so he quashed the decision.

There’s another intriguing passage in the judgment. The Judge received evidence from a number of solicitors, who described how they would have responded if they had seen the undisclosed material when they should have done. He also had evidence from Dr Gibby, the MOJ’s head of legal aid policy, and a very senior mandarin indeed. Dr Gibby said that the responses by the professionals, had they been known, would have made no difference to the MOJ’s decision. That, you may think, is pretty sweeping, and doesn’t say much for the MOJ’s willingness to deal with reasoned objections to its plans. But here’s the thing: Burnett J comments [§46] that

On instructions, [counsel for the MOJ] confirmed that this represented Dr Gibby’s opinion and was not to be taken as an assertion that, had he considered the representations foreshadowed in the claimants’ evidence, the Lord Chancellor necessarily would have sanctioned the adoption of the same assumptions or that the eventual decision would have been the same

What does this mean? It’s a bit Delphic, but to me it strongly suggests that the Minister is disavowing his own senior civil servant: that may have been what she thought, Grayling is saying, but I did not share that view. He is cutting her loose, and blaming her for any false impression that the solicitors may have formed about his real view of the matter.

So we have a senior civil servant saying that the informed views of those who would bear the brunt of the policy would have been disregarded in any event; and a minister apparently – and publicly – dissociating himself from her; and all in a context of fundamentally flawed decision-making. This wasn’t about some parochial matter like planning permission for a supermarket, but about whether legal services would be available to some of those most in need of them, and whether two thirds of solicitors’ firms would cease to exist: with serious knock-on effects for criminal justice and for law and order more generally.

What an almighty cock-up. This is train-crash government. It is not comforting to know that earlier in her career, Dr Gibby was the Director of the Royal Society for the Prevention of Accidents.

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