Barristers’ on strike: should the Lord Chief Justice have gone ‘no comment’?

The Lord Chief Justice has been widely criticised by members of the criminal Bar for having appeared to take sides – the wrong side – in the profession’s current dispute with the government over fees.  In this guest post Edward Henry QC reflects on how well the head of the judiciary has been able to perform his delicate high wire act between the twin pillars of the Judiciary and the State.

I have not had the pleasure of appearing before The Right Honourable the Lord Burnett of Maldon, Lord Chief Justice of England and Wales, and until 22nd June 2022 felt a certain affinity with the Chief. Unlike me, he sports a fine bouffant, a luxuriant helmet of Albino Sable, or Arctic Fox. In contrast, I am follicularly challenged, but were I to apply shaving foam to my shining pate, having rouged my cheeks (as I once did for the Soho Women’s Collective panto) a certain similarity could be approximated, provided I shaved off my beard.

Henry:  pleasing adiposity
Burnett: Albino sable
Picture: Catherine Baksi

We do, after all, share a trencherman’s physique, and because of our pleasing adiposity, I fondly imagined the Chief to be an excellent dining companion – his face is reminiscent of a jolly two bottler transported from the late 18th Century Augustan age, when flasks were smaller (of course) for he’s surely not a toper. Yes, our taste in Art was unlikely to be simpatico, vouched for by the fact that for many months (or so it seemed) a ludicrous email announced that the Chief had signed a print of the RCJ, which wheezed, as follows:

“The Royal Courts of Justice” has been published in a limited edition of only 950 prints – every one of which has been hand-signed and numbered by the Lord Chief Justice and the artist, to create a rare and historic legal collectible – which is already being referred to as one of the most important and valuable in British legal history.

Whom had the Chief endorsed by autograph? A modern Piper, Piranesi, or Palladio? Well, up to a point Lord BoM! When one inspected the dismal scene, the eye was met by a dreary, tea-bag-stained embarrassment. The referee, in the above boilerplate quote, must have been laughing all the way to the Bank – but only on the unlikely assumption that anyone had bought a copy. Whilst I would not question the Chief’s artistic taste (even judgement) his association with this particularly plain (at least to me) print project seemed perplexing until I read it was for charity, which (as you know, dear reader) covers a multitude of sins.

The Chief’s announcement on the CBA’s ‘Days of Action” suggests that his devotion to charity does not begin at home. After stating the obvious, that the Judiciary is to uphold the ‘Rule of Law’, he then unwisely rubbed his magic lantern and an intimidating spectre, muttering darkly of ‘wasted costs’, ‘referral to the BSB’ and ‘disciplinary process’ wafted from the spout. Having already professed (as he did before in his recent Slynn Lecture) that the Judiciary were not involved in the dispute between the Government and the Bar, the Chief’s aspirations to neutrality seemed to be surreally at odds with the actualité. In contrast, when contemplating the dearth of criminal practitioners in the Crown Court, during the course of the Slynn Lecture he delivered on 16th June, he said the following:

At the same time as the judicial capacity of the Crown Court has diminished in recent years, so too has the capacity of the legal profession to service the cases that we would wish to list. Of course, I shall say nothing of the current dispute between the criminal bar and the government and its potential to increase the outstanding caseload and reduce timeliness. But as the volumes of work in the Crown Court reduced over a period of about ten years and at the same time the remuneration available to both solicitors and barristers was either frozen or failed to keep pace with even modest inflation, the number of specialist practitioners on both sides of the profession diminished. We are now running the Crown Courts at about 25% greater a rate than we were three years ago. The legal profession has struggled to keep up in many parts of the country since the Crown Courts returned to pre-COVID levels of work during 2021. A growing number of cases in recent months listed for trial have been adjourned because either the prosecution or the defence have been unable to find suitable representation. That is a capacity issue and to my mind both the legal profession capacity issue and the judicial capacity issue demonstrate how important it is to ensure that any system that is vulnerable to ebbs and flows of work has sufficient resilience to deal with an increase in demand. The legal profession does not appear to have that resilience at the moment. Sorting out remuneration difficulties is an obvious first step. But it will take time for solicitors’ practices around the country to react and increase the capacity of their criminal teams. It will take time for the bar to reverse the trend of drift away from criminal law and increase the number of barristers willing and able to undertake criminal cases. There is an additional problem. The pool of suitably qualified lawyers is not only small, but it is being fished by many. HMCTS needs to recruit more lawyers as legal advisers in the Magistrates’ Court and elsewhere in the courts and tribunals service. The Crown Prosecution Service has been increasing its number of lawyers by recruiting heavily from HMCTS and the private sector. There do not seem to be enough criminal lawyers to go round. [Emphasis added]

This sober analysis was right on the money, or lack of it, but for the fact that rates have essentially remained static for 25 years, as opposed to ten, eroded by inflation, which now threatens to gallop away. Money isn’t everything, and most criminal practitioners aren’t motivated by it. Those who accuse us of cupidity are way off beam when so many critical tasks, including vital scrutiny of ‘unused material’ that might undermine the case for the prosecution, or potentially assist the defence case, remained excluded from the time the AGFS was introduced in 1997, until relatively recently. For 20 years the analysis of this material, fundamental to the fairness of the trial process, was conducted free of charge, the reward being the honour and responsibility of defending another human being.

Having, on 16th June 2022, succinctly stated the problem, the Chief’s announcement on 22nd June was surprising in its lack of deftness, and emotional intelligence. How are you going to retain practitioners or recruit new entrants if you appear to threaten them with an ermine veiled cudgel? Although the communiqué was couched in opaque language, nerves are frayed and emotions raw, so it would not be surprising if worthy advocates, at the end of their tether, might feel threatened, or see this as an instance of not-so-subtle intimidation? How do you reconcile the Senior Judiciary’s pseudo-Swiss stance with the heavy ordnance of referrals, mandatory reporting to the Presiders, and potential disciplinary proceedings? The apparent encouragement, however oblique, that wasted costs orders might be applied for by the CPS, pitting advocate against advocate? Could someone please tell us how someone with such political savvy, astute intelligence, and adroit skill, got it so wrong? Then I saw the answer staring me in the face.

In his Slynn Lecture, the Chief referred to the negotiations between the Judiciary and the Government that preceded the Constitutional Reform Act 2005. The phrase he used when describing them was ‘The Concordat.’ That term has unfortunate historic connotations that may be revealing, even sinister.

In 1929 Mussolini and the Pope agreed terms akin to a truce – resolving (uneasily and unsatisfactorily) the battle between the temporal and the spiritual worlds. The choice of the word ‘Concordat’, with echoes of Mussolini’s Concordat, The Lateran Treaty, may be revelatory (I do not say it is) of the untidy ambiguities and unresolved pressures that still exist between the ‘Independent’ Judiciary and The Executive. In stating this, I am simply referring to the tension between the Executive and the Judiciary, exacerbated by populism, without appropriating the historic context of that dreadful epoch. Such fatuous comparisons cause justifiable offence, but the Chief’s choice of word seemed uncanny.

The last few years, quite evidently, have been fraught with danger for the Judiciary. The Senior Judiciary have been vilified and castigated, accused of treason, with no less than Lord BoM’s predecessor being styled as an ‘enem(y) of the people.’ The Crown Court judiciary are frequently lambasted for ‘being soft’ when diligently, and responsibly adhering to Sentencing Guidelines, which are founded on powers conferred by Government. Maybe, our current Chief, confronted by this mayhem, feels constrained to attempt the improbable (indeed impossible) challenge of becoming a high-wire aerialist, walking the tight-rope ‘twixt those twin pillars of Judiciary and State, in full regalia, wearing paste-encrusted buckled pumps? How far his efforts can be reconciled with a more resilient definition of ‘Independence’, requiring a more forthright quality of virtù, I leave you to judge.

Lord Burnett was a stellar brief – he was junior counsel to the Maguire Seven and the Guildford Four inquiries. He made an outstanding contribution to them both, exposing that fathomless abyss of utter darkness into which our system of criminal justice had fallen. Has he forgotten what he helped to reveal? Can he not remember the degradation, and torture of the innocent, enabled by a dysfunctional system, which has been repeated in our more recent past with the horrifying Post Office Horizon scandal? We now need, more than ever, fearlessly independent Judges and advocates to uphold rights, especially advocates willing to defend against the odds, whenever the risk of oppression and abuse of power threatens our liberties. The Criminal Bar’s withdrawal of labour, paradoxically, is not intended to destroy but to preserve: to preserve not only the Independent Bar, but the Criminal Justice System itself.

When appointed, Lord Burnett became the youngest Lord Chief Justice since Lord Parker of Waddington, who (in 1959) stressed that the judiciary’s “positive responsibility [is] to be the handmaiden of administration rather than its governor”. The judiciary as handmaidens (you give me a gender-neutral alternative!) of the Executive conjures up a procession of docile, red dressing gowned, ghosts gliding on and off the Bench, more concerned to approve rather than inclined to protect the citizen against the misuse of state power. Has a new era of judicial deference, unthinkable, perhaps, to Lords Bingham, Woolf, and Phillips begun?

It is not encouraging.

I fear, without condemning the Chief, that Lord Burnett may have chosen the wrong path, at least for now. The Slynn Lecture sits ill with the missive of the 22nd June. That latter statement may not have been an emetic, but it was unpalatable. It was better left unsaid, just as it may be for others to judge if this article were better to have remained unwritten. So, I’d better put that dinner à deux on hold for now. The corked bottle should have remained uncorked. To my colleagues, my good, worthy, and courageous colleagues, I wish you strength. We shall all need it.

Edward Henry QC practises in serious crime, business crime and fraud. He is Head of Regulation at Mountford Chambers, and his regulatory practice involves the defence of financial institutions and professionals. Many years ago, he had a successful practice defending sex-workers, which led to his playing a pantomime Dame, or to be more precise an “Ugly Sister” in the English Women’s Collective of Prostitutes’ Annual Panto. His performance1 was so unconvincing (“abysmal”) that he was not asked to repeat it. He writes in a personal capacity, and his views should not be attributed to Chambers, but if he laughs (or pokes fun) at any mortal thing it is so he should not weep.

1 On stage

A busman’s holiday at the Tommy Robinson Appeal

Barristerblogger had a day in Town on Wednesday; coinciding with both the Cliff Richard judgment and the Tommy Robinson appeal.

A New Attorney-General

While the Cliff Richard judgment was being delivered, a little down the corridor in the Lord Chief Justice’s court a new Attorney-General was being sworn-in before a bench full of colourfully be-robed (and in the LCJ’s case be-chained) judges in their splendidly absurd full-bottomed wigs. Down in counsels’ row the new Attorney-General too was full-bottomed. Someone in the court clerk’s usual seat even had an extraordinary black tricorn contraption which she seemed to have some difficulty balancing on her own full-bottom wig – I have since learnt that she was the Queen’s Remembrancer.

Who, though, was that nice but ordinary-looking man squeezed in at the end of the judges’ bench? Nobody seemed to know, but eventually it turned out he was David Gauke, the Lord High Chancellor of England. He had acquired a yellow and black robe from somewhere, but no wig, so amongst all the bigwigs he looked like a man in a lounge suit at a white tie dinner. He gave a short but sensible speech, leavened with the sort of bland humour that is expected on these occasions.

Pushing and shoving for the best seats

Whilst this solemn ceremony was going on, there was a great deal of polite pushing and shoving in the stalls as members of the public, Barristerblogger included, manoeuvred to grab the better seats in the house. For a time, it was standing room only and as the encomiums to the new Attorney-General continued to flow from the bench, who should slip to the front of the queue, face down in his twitter notifications, but Tommy Robinson’s greatest supporter, PR Svengali and chief fund-raiser, flown over from Canada at Tommy’s special request, none other than Rebel Media’s Ezra Levant. Continue reading “A busman’s holiday at the Tommy Robinson Appeal”

Attacks on the Article 50 judges are a disgrace

In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.

On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:

The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”

And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice. Continue reading “Attacks on the Article 50 judges are a disgrace”