To strike or not to strike? Why Criminal Lawyers should make up their own mind and not be swayed by others.

Having read many comments and blogs over the past few weeks regarding whether the Criminal Bar should refuse publicly funded work, effectively to strike, I have decided to weigh into the debate.

Firstly, make no mistake, I am appalled at the way the MOJ have behaved towards the legal aid consultation, and I believe that Chris Grayling has made it clear that he knows nothing about criminal practitioners, nor does he want to. His actions and comments have ranged from deceitful to childish, and in the main have been nothing to do with supporting the profession which works long hours day after day to represent those who are unfortunate enough to find themselves in the criminal courts, but instead have been everything to do with trying to win the support of the Middle England voters who have been fotunate enough to have never been involved in the criminal justice system.

However, I think Chris Grayling’s actions should be put to one side when considering whether the profession should effectively go on strike. We are professionals and should weigh up all the pros and cons of refusing work, just as we would weigh up the likely outcomes of taking a certain course of action in our criminal prosecutions or defence. I am concerned that an overbearing attitude is creeping into the profession, which if we are not careful will create a ‘either with us or against us’ scenario. Particularly for younger members of the profession who are worried about whether their future work will dry up if they do not support the ‘strike’ action, this is unhealthy. As far as the Criminal Bar is concerned we are Independent. We hold this independence out to be one of our strongest features, and yet I am hearing daily of counsel who are being told that they must strike ‘or on their head be it’. All of us run an independent practice, and therefore we should be able to make our own decision on whether to refuse work.

I will not strike. I have made this decision on the basis of my principles, I do not want to see a defendant having to represent themselves, or be represented by a lawyer who is not their lawyer of their choice, due to the fact their lawyer is on strike. I am prepared to work to rule, and only work from 9 to 6 on my legally funded cases, and then to justify to the court why a case is not prepared, but it should be down to me to make that argument to the court and not the client.

I accept that financially, the MOJ’s cuts will make it very difficult to all of us criminal practitioners to survive, and I believe that a work to rule may make the MOJ realise that in reality cases are going to take longer and so will be just as costly. Not just in payments to counsel (in cases where we do actually receive payment for the extra days a case will take) but also in the extra court time taken to deal with each case.

I have seen much written about the cuts in recent weeks, and I am concerned that the ground we made with the public with regard to the damage that the MOJ proposals could do to them, is now being lost by the constant reference to the new proposed fees in criminal legal aid. The public do not understand that most of our daily rate does not end up in our back pocket, nor that we often have to wait over a year for the payments.  None the less, I fear that focussing on the money is causing us to lose ground to the MOJ on public opinion.

I also represent claimants in the employment tribunal (mainly thought the Free Representation Unit and the Bar Pro Bono Unit) and none of my clients earn as much as the daily trial rate in either the Magistrates or Crown Court. Try telling a client who has worked 40 hours a week on the minimum wage (£247.60 gross), for five years, only to be told that they are being laid off, and so are still classed as employed but can only receive the Job Seekers allowance per week, that earning over £100 per day for a trial is tough. This is not an extreme example, these are cases that I am seeing day after day, of people who are working for less than minimum wage or who are being told that their employer cannot afford to pay their salary for the month. These are the public who we should be trying to get on our side, not alienating. Talking about our fees will not help our cause, the country is under austerity measures, the NHS is at breaking point and everyday people are being made redundant or told that they need to move from their home as they have a spare room. We are not the only ones who are suffering, and we should try to connect with those who are suffering, after all for many of us they are our clients, whether criminal, employment, housing or immigration.

It is my personal opinion that a strike will alienate the public, and will just give Chris Grayling more ammunition to throw at the criminal profession. I can just see the headlines of articles in the Daily Mail and the Telegraph about how criminal defendants are having to languish in jail, awaiting trial as their greedy lawyers are striking!

Hence, for my part I will not be striking, nor will I be telling anyone else what to do, or criticising them for their decision. The criminal professions joined together like never before to fight the first MOJ consultation, it will be such a shame to see that union fragment into a blame culture. That would play right into the MOJ’s hands. We should be united in making sure that we reply to the 2nd Consultation, and in supporting each is that which will make us a respected profession and also create an environment where, no matter what happens with the MOJ cuts we continue the support as much as we can.

About gurdena

Social Justice Barrister, interested in all things contentious & anything criminal justice related including prisoners and complaints against the police. Specialising in criminal law - mainly sex, violence, and football fans (not necessarily all 3 at the same time!). Represents people facing death penalty in the USA. Associate Member at Drystone Chambers

2 responses to “To strike or not to strike? Why Criminal Lawyers should make up their own mind and not be swayed by others.”

  1. kate mallison says :

    It is because I am concerned that any strike action we take is successful that instead I would add our suppport to the court staff’ strike. By doing this, we would have no need of an “exit strategy” as the strikes are for isolated days and equally importantly we would not be the prime culprits in bringing the courts to a halt, and as such any threat of wasted costs or other sanction can be fended off by pointing out that court staff don’t get penalised for striking.

  2. gurdena says :

    I think this will only work if we physically show our support, if it is just used as an office day for criminal lawyers then it will have no effect, and will depend on the relationship between the lawyers and court staff. I spend a lot of my time in certain courts and would support the staff in those courts because I see the pressure they are under and the rough deal they are getting. I would like to think we can work together, but if we just use it as an excuse to protect ourselves from criticism about striking rather than actually supporting the court staff we can expect bad press and to lose he support that we currently have from the court staff. The only way we are going to make any impact with the MOJ is if we all unite – lawyers, court staff and probation – all those at the heart of the justice damaging cuts and privatisation.

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