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The Risk We Run

December 18, 2013

resistance-is-futileOn 6th January the Criminal Bar is going on strike. Or, more accurately, they aren’t going to turn up for work in the morning. On 6th January I start a civil trial. I will be working on that day because the Court has listed the matter and my client is paying me to be there. I make this declaration because I want to talk about what is going to happen. I should also be spending this evening doing the Opening for that trial and I very much fear that I will pay for this post with a 3am finish some time soon. Still, it’s important.

As you would expect the Bar Standards Board has published guidance about the 6th January. It says that not attending Court is a disciplinary offence. It says,

In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.

Let’s get some things clear:

  1. It is unsurprising that the BSB has issued guidance. It is obliged to regulate us. Not to issue guidance would be to fail to do so. We might not like it, but to suggest that it should not have happened is irrational.
  2. It is not the case that the BSB must support us. It is an independent regulator. There is no obligation upon it to view breaches of the Code of Conduct as if they did not matter. It would be a dereliction of duty if it did. The notion that the Code of Conduct can in some way be put to one side or waived if it suits us is wrong. If it means anything, it means that we have a standard to which to keep. The CBA has itself acknowledged that striking is a breach of the Code.
  3. The Bar Council has issued its own guidance. I have heard people saying that the Bar Council is like the Law Society and has lost the confidence of its membership. I hope that the latter proposition is untrue – it certainly is insofar as I am concerned. The former proposition is nonsense: the Law Society sold its members down the river by secretly negotiating with the Government and reached an agreement without consulting them. That was a betrayal of an elected position, which is why Fluck ought to resign. Moreover, the ‘prize’ produced by the negotiation was the abandonment of Price Competitive Tendering – the one proposal to which just about everyone was opposed. Having caught the red herring the Law Society went around saying “look at my whopper”. That is either deliberately deceitful or idiotic, which is why Hudson ought to resign. Not that it’s anything to do with me. But to pretend that the Bar Council is even close to that type of behaviour is bordering on the hysterical.

However, everyone who does not attend Court on the 6th is taking a personal risk. I am one of those who has said they will represent people to whom that risk comes home to roost, either in front of Judges or the Disciplinary Committee and, in either case, for free. I say that to make it clear where I stand. I do not believe this Lord Chancellor can be reasoned with. I do not believe that the Ministry of Justice is trustworthy. I do not believe they will make any concession that is not forced out of them. I do not believe they are interested in being fair. I do not believe they understand the damage they are doing but nor do I believe they are remotely interested in achieving such an understanding. These proposals are rotten to the core and we need to stop them. The only way to stop them is by taking direct action. Nothing else will work.

However, we need to get some other things clear too:
  1. The strike proposal is ill-thought out and has not been the subject of proper consultation. There was no proposal for my chambers to consider when our volunteers to attend the meeting stepped up. The proposal was put at the meeting and not before. It took advantage of the type of atmosphere which is produced when a lot of angry people get together and sound off to a mutually appreciative audience.
  2. That should not have happened. What should have happened is that a list of options were sent to Chambers, so that a serious and sober debate could take place before those attending the meeting knew they were going. The meeting should have debated those options, with the results of Chambers’ deliberations being made clear. The outcome may have been the same, but it may not.
  3. The options should have included a work to rule (my preferred route) including lobbying the judiciary, a mass holiday and doing nothing (I am not pretending to have thought of every option). Doing nothing is important because it would empower those people who really do not want to take any action.
  4. The strike option ought to have been debated in the light of the fact that professional careers may be ended or severely impaired, and not that ‘they can’t discipline all of us’. The protocols should have been published in advance so that those agreeing to strike could see what they were agreeing to.

We are now in the position that so many people are, in fact, going to strike on the 6th that we all need to. Otherwise the thing will be a damp squib and, once that happens, we can never be taken seriously again. Accordingly, I support what is happening and I will support those who are doing it as best I can. That does not stop me feeling that I have been bounced.

This is not a post in which I intend to rehearse the arguments about what sort of direct action we should take. That is for another time. We (not me) are striking. If we don’t the MoJ will be laughing. If I was doing a criminal trial I would strike. Angrily, but I would. What I want to do now is to consider what the BSB has said. I do not agree with all of it. I do not think that it is issued because ‘they’ hate ‘us’, but that doesn’t mean it’s correct. There are some points, which I believe need more thought than they seem to have had.

The BSB says this:

The BSB considers that the risks of an Instructed Barrister failing or refusing to attend a court hearing are, depending on the particular circumstances, likely to include:

  • harm to the interests of the individual client of the Instructed Barrister (which may be aggravated if that client is vulnerable);
  • harm to the interests of other persons involved in or who have a direct interest in the case that is the subject of the hearing (for example, co-defendants, witnesses, victims and jurors); and
  • harm to the administration of justice and the public confidence in the administration of justice.

Depending upon the circumstances that apply in any particular case, the harm caused by an Instructed Barrister deliberately failing to attend a hearing at which he is due to represent a client may be very severe. Adjournment or abandonment of a trial, for example, will usually represent the most serious harm to all three categories identified above.Instructed Barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action. In deciding whether to take action, the BSB will consider all the circumstances, but will have particular regard to the harm caused by the Instructed Barrister’s actions.

That is fine insofar as it goes but it begs the question of what is meant by harm. Let us take the case of a Judge who agrees not to sit until 2pm. The risk has not eventuated. If the BSB is going to have regard “to the harm caused” then, presumably it will conclude that no harm has been caused to the client. The witnesses and jurors may have to wait. That is the position in every case. Whilst the delay on 6th January may be deliberately caused by the barrister(s),  it is more difficult to say that such delay has caused harm. I am unaware of the BSB or any body responsible the performance of those engaged in the administration of justice ever investigating that issue before. It is difficult to see why that should be done now. If the BSB wishes to “make an example” of people that would be improper, because there is no need to do so – any further action will have to be better planned and better considered.

As for harm to the administration of justice and public confidence, it seems to me that the recent polls suggest that the public sees perfectly clearly that the harm comes from the MoJ. It is the MoJ that has gutted legal aid for people who cannot afford representation. It is the MoJ that has ensured that those with limitations on their own capabilities will have to represent themselves in prison discipline cases. It is the MoJ that has sought to prevent ordinary citizens accessing the Courts to prevent overweening Government action. A protest against that – direct action to prevent that happening – is hardly harming public confidence. What’s more, if the Judge has agreed not to sit, that would seem to suggest that they have considered the point and determined it. Of course, that is not biding on the BSB but they ought to consider carefully why they would wish to differ.

Of course, the BSB Guidance says that the risks “are likely” to include such harm. That seems to me to be prejudging the case – a concern where the BSB is the prosecuting authority. On what basis has that conclusion been reached? What alternatives have been considered? Where and what is the evidence relied upon in coming to that conclusion? Or is this simply a declaration based on nothing more than a ‘gut’ feel? I am deeply uncomfortable that, before any actual case has been examined, a particular result has been said to be likely. If the Judge in one of the cases on the 6th January 2014 behaved in that way, it would be likely to lead to an invitation for recusal. It may be defensible (it’s not for me to say) but it isn’t sensible. The guidance could have perfectly well invited barristers to consider these risks, and it would have been better if it had done so.

If the Judge refuses to allow an adjournment then the Judge is deliberately imperilling the client. On what proper basis could a client thus be prejudiced? Would it be proper to say “you consented to the absence of your representative so you can cross-examine for yourself”? Would that lead to a safe result? Surely, the proper remedy is not to visit the sin of the barrister on the client, but to make a direction to show cause why the barrister should not pay the costs wasted.

If so, then where is the harm? The client has not been harmed. The jurors and witnesses are no more prejudiced than if the Judge does agree – because that is what the Judge has, ultimately, done. Public confidence will, in some ways, have been increased because the fairness of the Judiciary will have been demonstrated (again). Paradoxically, it would be easier under the old Code of Conduct to simply say that striking was discreditable conduct. However, we are now under the new Code, which has moved to ‘outcome based regulation” (just as the research casts doubt on its effectiveness) and so the maintenance of an absolute standard is more difficult.

I believe that what the BSB ought to have said is that not attending Court obviously gives rise to a risk of harm and that barristers would have to demonstrate that such risk had been eliminated (so as not to be guilty of a regulatory breach) or had been mitigated (so as to be arguably not guilty and in any event not deserving of severe punishment). I am afraid that the BSB Board and its staff fail, by and large, to understand the exigencies of criminal practice and its particular stresses and strains. I would like to see both members and staff undertaking 2 week placements in Chambers in order to get a grasp of what criminal practice entails. I have a (nowadays almost unique) practice which entails criminal and civil litigation in equal measure. I do the sort of work the barrister members of the BSB do (not as well as them). That sort of civil work is not like criminal work. The pressures are not the same. The people are not the same. The rules are not the same, and the money sure as hell is not the same. For that reason QASA is a huge error of judgment and this guidance would have benefitted from more knowledge. That is not to say the BSB is evil or badly-intentioned: it is not.

The last paragraph, which I have already quoted, is worth another look. It says,

In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.

Why is this relevant? I know of no barrister who is striking to further their own interests. The reason for the strike is to prevent the public losing a pool of talent and expertise, regularly praised by the Judiciary for its commitment to justice, convenience and the elimination of unnecessary time and cost. If these proposals – and yes the cuts – go ahead, that talent will be lost. The nation will be immeasurably worse off. Injustice is a worm – once it gets inside the apple it eats through it. And no sensible person wants to eat the apple with the worm in. Is that how we wish the populace to think of our system? So, the implicit suggestion that this is a strike to “leverage your own interests” is unfair, rude and crass. Had the members of the BSB spent some time with criminal practitioners, it is inconceivable that this sentence would have been written.

I will not see you on the barricades on the 6th. But I will happily run these arguments (and any others that brighter people than I can think of) for you until someone tells me to shut up and sit down. I hope it won’t be necessary. I hope we can agree not to strike again, or at least debate the next one properly. And I cannot believe that I am talking about barristers striking – for which only one party is to blame and that is this Government and its “civil” servants.

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7 Comments leave one →
  1. Nigel Pascoe permalink
    December 19, 2013 6:47 am

    This is a really excellent blog. We do not agree entirely but your analysis of risk is on the money

  2. December 19, 2013 9:14 am

    Simon,
    Thanks for making this balanced and reasoned contribution to this fraught debate.
    Just a few points in response from a BSB perspective. In saying that harm to the outcomes is “likely”, the BSB is simply explaining why it is appropriate for the regulator to issue guidance with a view to avoiding that harm, not prejudging any eventual disciplinary decisions, which would need to be taken on the specific facts of the given case. However, it is only right and fair to make clear to individuals, particularly more junior members of the Bar, the nature of the risk they are incurring and the reasons why (despite agreeing with many of the criticisms of the MoJ’s plans, as will be clear from the BSB’s responses to the consultations and Baroness Deech’s interventions in the House of Lords) the regulator may consider it right to take action against strikers in those cases where its criteria for taking enforcement action are met.
    Incidentally, this is not a view arrived at through a lack of understanding of the reality of criminal practice: our board of 15 has 6 barrister members, a majority of whom do have direct experience of the exigencies of the criminal justice system, 3 having a criminal or partly criminal practice and 2 sitting as recorders. However, our experience has been that views don’t break down along either barrister/lay member lines or civil/criminal practitioner. That reflects the fact that we are not a representative body but are obliged to act so as to uphold the public interest, articulated in the regulatory objectives imposed on us by statute.
    The key message here is that barristers need to find ways of reconciling their wish to protest with discharging their duties to their client and to the Court. Normal conduct rules are not suspended simply because the barrister argues they are being breached in a good cause.

    • December 19, 2013 9:30 am

      Thank you Patricia (although my credibility will be shredded by your characterisation of this as helpful ;)).

      The protest is predicated on the fact that it is a breach of the rules and the CBA has said as much. The point is that – as with all civil disobedience – the breach is said to be warranted by the greater good. That is an argument we will no doubt witness in due course, as you suggest in your last paragraph..

      I don’t think that sitting as a Recorder in the Crown Court provides sufficient experience and I do think that everyone would benefit from a couple of weeks at the coalface. You are welcome in Leeds any time (truly).

      Whilst I acknowledge the BSB’s obligations, I would very much hope that if professional conduct charges are to be brought against anyone, it will NOT be against junior members of the profession. That would smack of bullying. Of course, the BSB could charge everyone, in which case finding Panels will be interesting. That, of course, is one of the calculations on both sides.

      Nigel has said above that he and I don’t entirely agree. That is, at least in part, because I differentiate between the BSB and the MoJ and he does not: he trusts everyone and I don’t trust the MoJ. That is probably because he is much nicer than me, but I think we do agree that some sort of constructive engagement with the BSB is necessary and possible. Although the BSB is independent, there is no downside in discussing matters like this before guidance is issued. Guidance is not more independent because it is constructed in a vacuum. Equally, the CBA ought to see its way to a similar consultation before deciding on what action to call for next and, if it does, the BSB ought to reciprocate. We aren’t the Law Society and you aren’t the SRA.

  3. James Vine permalink
    December 20, 2013 2:30 pm

    Since when did Nigel Pascoe assume the a Royal “We” Or is he suggesting that he is in a minority greater than one?
    I applaud your analysis Simon. Consultation is the key

    • Simon Myerson permalink
      December 20, 2013 2:48 pm

      James – a fine forensic point but I think that Nigel was referring to himself and me. Consultation is absolutely key – but to get the best out of it we need to be nice to each other too, and he was being.

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