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Us oldies always refer back to the comics Peter Cook and Dudley Moore, remembering when Pete turned to Dud and said, ‘I could ‘ave been a judge but I didn’t have the Latin’. I must confess that not only did I not have the Latin, but my French was little better. I made my way ad silvam, to the wood, to look for la plume that ma tante lost.
That said, recently I found myself employing a French expression at the same moment that Jo Sidhu QC, the current leader of the Criminal Bar Association, was using a different one. Mine was déjà vu. His was plus ça change.
Those who have followed my career avidly, other perhaps than the Bar Council and Her Majesty’s Revenue and Customs, will have noted that, having been in practice since 1976 through to 2017, I sat as a Crown Court Judge from then until my retirement in 2021. Perhaps what meant most to me was that I had the honour of leading the Criminal Bar in 2014 and the action of that period against the government (pictured above). The Minister of Justice was Christopher ‘Failing’ Grayling. I am sorry to remind us of his nickname, but his classic failing had been in his dealings with the criminal justice system. He was seeking to cut £220 million from a budget that had already led to many counsel being paid £46 a day. Not just long hours and poor pay, the Criminal Bar was ravaged by many other defects; notably a lack of diversity and support for those seeking to enter the profession from lower socio-economic groups. Of course, there was the view of some that ‘I am all right Jack’ (or Jacques or Jacobus if you haven’t got past the French/Latin above) from those who commanded well paid practices. But stumbling under the weight of it all was the junior end of the profession, barristers and solicitors who were going to the wall. Our demand of the government was to stop the cut and that was achieved.
Some time later, I packed my bags, including the model cars, paintings and soldiers that were to sit on my shelves in my room at court, in lieu (more French) of books and made my way up the M1 first to Luton and later St Albans. I also took Judge Wonky Glasses for my wig to sit on. Being a judge can be a cocooned life, but I strove to maintain my humanity and kindness throughout the period there, as well as being triple vaccinated against COVID, flu and judge-itis.
I re-emerged this summer into the dystopian world of the criminal justice system. It has hit me like a sledgehammer. The most worrying features:
Remote hearings accorded with the message that was being given to the Bar as long ago as 2015 by inter alios (Latin) Lord Justice Leveson who in a keynote address, ‘Modernising Justice Through Technology’, said:
‘Jury trial is not about to move to virtual reality – but much of the preliminary work will be done by everyone in their offices, retiring rooms, living rooms with all the participants being linked together.’
But having started down the road of taking non-trial matters out of court, the message that next came out from the MOJ was ‘get yourselves back in here’. It doesn’t matter that it’s inconvenient to most participating in the hearing, nor that it exposes judges without Perspex, witnesses with unshielded witness boxes and not even rudimentary testing for COVID, we at the MOJ expect you back.
These are truisms: backlog, remote hearings and exodus of criminal advocates due to poor remuneration, are linked and it follows so must be the solutions. Building more or grander courts and more prisons to house the increasing number of defendants awaiting trial is a false economy. None of these will replace the shortage in criminal advocates (and indeed judges) to undertake the work.
Every day, every court is engaged in hearings that could be done by the equivalent of Zoom. Pre-trial hearings, progressing hearings and much sentencing are perfect for the digital age. The presumption of it being in the interests of justice to hold such non-trial hearings digitally should replace the test currently applied. The response from some judges that remote hearings are being requested to somehow ‘feather the lawyer’s nest’ must stop.
This would:
The larger part of the solution would be to improve advocates’ remuneration and attract them back to work in the criminal courts. Poor earnings and large expenses have driven them away. As with HGV drivers, the only thing that will bring them back is a well-calculated system of pay. If the government is serious about its message of levelling up, then see what those in other areas of law earn; what their pupillage grants are. If not parity, at least a fair and realistic level of remuneration to reflect the responsibility they carry.
What I left in 2017, is the picture I find now – only worse. A government who does not recognise its own role in cutting sitting days pre-COVID, nor the lack of proper remuneration as major contributors to the backlog. A government that hides behind the fabricated idea that lawyers do not properly advise on credit for an early plea. An uninformed view that somehow civil and immigration cases have anything to do with the breaking point problems in criminal justice. This is Nothing Like the Truth.
So, I say déjà vu, I’ve seen it all before. Jo says plus ça change, everything stays the same. But it must change. 2021 is yet another crossroads for criminal advocates and the government should heed that this could be 2014 all over again.
Nigel Lithman KC recently retired following a career spanning 40 years at the Bar and on the Bench. While Chairman of the Criminal Bar Association in 2014, he led the first 'days of action' against the government in the Bar’s 400-year history.
Us oldies always refer back to the comics Peter Cook and Dudley Moore, remembering when Pete turned to Dud and said, ‘I could ‘ave been a judge but I didn’t have the Latin’. I must confess that not only did I not have the Latin, but my French was little better. I made my way ad silvam, to the wood, to look for la plume that ma tante lost.
That said, recently I found myself employing a French expression at the same moment that Jo Sidhu QC, the current leader of the Criminal Bar Association, was using a different one. Mine was déjà vu. His was plus ça change.
Those who have followed my career avidly, other perhaps than the Bar Council and Her Majesty’s Revenue and Customs, will have noted that, having been in practice since 1976 through to 2017, I sat as a Crown Court Judge from then until my retirement in 2021. Perhaps what meant most to me was that I had the honour of leading the Criminal Bar in 2014 and the action of that period against the government (pictured above). The Minister of Justice was Christopher ‘Failing’ Grayling. I am sorry to remind us of his nickname, but his classic failing had been in his dealings with the criminal justice system. He was seeking to cut £220 million from a budget that had already led to many counsel being paid £46 a day. Not just long hours and poor pay, the Criminal Bar was ravaged by many other defects; notably a lack of diversity and support for those seeking to enter the profession from lower socio-economic groups. Of course, there was the view of some that ‘I am all right Jack’ (or Jacques or Jacobus if you haven’t got past the French/Latin above) from those who commanded well paid practices. But stumbling under the weight of it all was the junior end of the profession, barristers and solicitors who were going to the wall. Our demand of the government was to stop the cut and that was achieved.
Some time later, I packed my bags, including the model cars, paintings and soldiers that were to sit on my shelves in my room at court, in lieu (more French) of books and made my way up the M1 first to Luton and later St Albans. I also took Judge Wonky Glasses for my wig to sit on. Being a judge can be a cocooned life, but I strove to maintain my humanity and kindness throughout the period there, as well as being triple vaccinated against COVID, flu and judge-itis.
I re-emerged this summer into the dystopian world of the criminal justice system. It has hit me like a sledgehammer. The most worrying features:
Remote hearings accorded with the message that was being given to the Bar as long ago as 2015 by inter alios (Latin) Lord Justice Leveson who in a keynote address, ‘Modernising Justice Through Technology’, said:
‘Jury trial is not about to move to virtual reality – but much of the preliminary work will be done by everyone in their offices, retiring rooms, living rooms with all the participants being linked together.’
But having started down the road of taking non-trial matters out of court, the message that next came out from the MOJ was ‘get yourselves back in here’. It doesn’t matter that it’s inconvenient to most participating in the hearing, nor that it exposes judges without Perspex, witnesses with unshielded witness boxes and not even rudimentary testing for COVID, we at the MOJ expect you back.
These are truisms: backlog, remote hearings and exodus of criminal advocates due to poor remuneration, are linked and it follows so must be the solutions. Building more or grander courts and more prisons to house the increasing number of defendants awaiting trial is a false economy. None of these will replace the shortage in criminal advocates (and indeed judges) to undertake the work.
Every day, every court is engaged in hearings that could be done by the equivalent of Zoom. Pre-trial hearings, progressing hearings and much sentencing are perfect for the digital age. The presumption of it being in the interests of justice to hold such non-trial hearings digitally should replace the test currently applied. The response from some judges that remote hearings are being requested to somehow ‘feather the lawyer’s nest’ must stop.
This would:
The larger part of the solution would be to improve advocates’ remuneration and attract them back to work in the criminal courts. Poor earnings and large expenses have driven them away. As with HGV drivers, the only thing that will bring them back is a well-calculated system of pay. If the government is serious about its message of levelling up, then see what those in other areas of law earn; what their pupillage grants are. If not parity, at least a fair and realistic level of remuneration to reflect the responsibility they carry.
What I left in 2017, is the picture I find now – only worse. A government who does not recognise its own role in cutting sitting days pre-COVID, nor the lack of proper remuneration as major contributors to the backlog. A government that hides behind the fabricated idea that lawyers do not properly advise on credit for an early plea. An uninformed view that somehow civil and immigration cases have anything to do with the breaking point problems in criminal justice. This is Nothing Like the Truth.
So, I say déjà vu, I’ve seen it all before. Jo says plus ça change, everything stays the same. But it must change. 2021 is yet another crossroads for criminal advocates and the government should heed that this could be 2014 all over again.
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